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Seanad Éireann debate -
Tuesday, 10 Jun 1975

Vol. 81 No. 9

Criminal Law (Jurisdiction) Bill, 1975: Committee Stage.

Before we take up consideration of the Committee Stage of this Bill, I should like to indicate that I have ruled that amendment No. 23 standing in the name of Senator Lenihan is out of order on the ground that it involves a potential charge on State funds. The Senator has been notified accordingly.


I move amendment No. 1:

To delete subsection (2).

I put down this amendment mainly to find out from the Minister what he intends by this rather curious reference to "the making of omissions". Subsection (2) of section 1 reads:

References in this Act to an Act include references to an omission and references to the doing of an act include references to the making of an omission.

When we go down to the first subsection of section 2, which is the basic extra-territorial section in this Bill, it states:

Where a person does in Northern Ireland an act that, if done in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence——

We could vary the wording:

Where a person does in Northern Ireland an omission that, if done in the State, would constitute an offence ... he shall be guilty of an offence.

I am not clear as to the legal implications of this. I shall be glad to hear from the Minister precisely what is intended by this. In subsection (4) of section 2, line 19 the position becomes rather clearer. One could describe it as almost sinister. It reads:

Where a person has committed an offence under subsection (1) of section 3 or attempted to commit any such offence, any other person who, in the State or in Northern Ireland, knowing or believing him to be guilty of an offence or attempt or of some other such offence or attempt, does without reasonable excuse any act with intent to impede his apprehension or prosecution in the State or in Northern Ireland shall be guilty of an offence.

If this subsection were to read "does without reasonable excuse any omission with intent to impede his apprehension" it would appear to mean that whereas the ordinary offence was to help a person to evade prosecution which involves a positive act, in this instance we are to have a lack of activity, an omission, becoming prosecutable. It would suggest—the Minister can correct me if my interpretation of this is wrong —that if you know that somebody has committed an offence and you do not do anything to have him apprehended or prosecuted, you are committing an offence. This would appear to be very wrong. If this is not what it means, I will be glad to know precisely what the legal implication is of subsection (2) of section 1 which states:

references to an act include references to the making of an omission.

Senator Yeats might think I am being ironic when I say that the drafting was for the purpose of clarity. There are precedents for it. It is essentially a drafting point and there is no deliberate connection between it and the provisions in subsection (4), although it could affect the provisions of subsection (4). The provision in section 1 (2) was purely to make sure that it will not allow anything to escape through loose drafting. It follows the Extradition Act of 1965 to which we had occasion to refer the last day. In that Act "an act" is defined as including omission. As a matter of language it might not be immediately clear that where section 2 penalises somebody for doing an act, it applies also to a person who makes an omission. Most of the criminal conduct to which section 2 applies, indeed most of the criminal acts, are positive acts, but it is conceivable that they could be the result of an omission. One of the scheduled offences is manslaughter. Manslaughter may be committed by means of an omission. An express provision covering omission may not be necessary in every criminal statute but in this Bill, because of its unusual nature and because it is the first time that the extra-territorial concept although not a new one has been spelled out in so much detail, we thought it better that the definitions would be as tight as possible. The Bill is concerned with things done or omitted to be done in Northern Ireland. It is important that there should be no doubt that something omitted to be done in Northern Ireland, in an appropriate case, should be an offence against our law.

With regard to the linking by Senator Yeats of subsection (4) of section 2 with section 1 (2), it is quite true to say that a person, by an act of omission, could positively impede the apprehension or prosecution of a person in the State or in Northern Ireland. It is quite possible that an act of omission could be a positive impediment to the apprehension or prosecution of an offender. That would not be a new legal concept. It is a very old part of the criminal law, where there is an obligation on a person who witnesses a felony to move in to stop it. I think "misprision of felony" is the technical name for it. It is actually an offence for a person who witnesses a felony to ignore it and not to take actual steps. Therefore, it is not a new legal concept. We thought it would be better for the sake of having the matter tight to define an act as including the making of an omission, or including an omission, so that an offence by omission would be covered.

It would appear with regard to my interpretation of subsection (4) that I was right. I must say that, while it appeared to read that way, I could not really believe that it did. One must remember always the kind of conditions existing in Northern Ireland but if, in a particular household, there are a number of people who know that a certain person is involved in unlawful activities, perhaps that he has a gun under his control, or else he has been involved in knee-capping or any of the other activities of which we must and do entirely disapprove, we must be realistic with regard to the type of conditions in Northern Ireland; we know that there are large sections of the community, unfortunately, who feel, at the very least, some element of sympathy with persons who are engaged in unlawful activities. From what the Minister has said, it would appear to be the case therefore that all such persons who have knowledge that an individual is involved in unlawful activities, who have not informed the police of that fact, who have stood by the omission and done nothing, all of these people, of whom this could be proven, could be prosecuted and, of course, were they living here at any stage, then we would be involved under the various sections of this Bill. The Minister says he wants to have definitions as tight as possible. I am in favour of that too. The trouble is that, in this case, he is having the definition as wide as possible. It seems to me it would cover an enormous number of people.

I will concede the Minister his reference to subsection (2), his reference to manslaughter; I am convinced that, obviously, there are cases where an omission could be an offence. I am prepared to let that go; that seems reasonable. But I do think he should limit the effect of subsection (2) of section 1 to that type of act. But to bring them in under subsection (4)— and, of course, subsection (6) is in the same category and there are various other subsections throughout the Bill; for example there is another case in section 3, subsection (1) (b), line 34— relating, in each case, to efforts to impede the apprehension or prosecution of people. It seems to me that these should be excluded specifically from this definition. Otherwise there will be undoubtedly a situation where all kinds of people could be dragged in under this legislation who have done nothing except that they have not — and in Northern Ireland conditions one can understand many people would not want to—brought this person before the police and notified the police that he is there.

I know absolutely nothing about criminal law, which perhaps I should have made clear before I spoke on the Second Reading of the Bill. I think Senator Yeats has made a valuable point with regard to this. It is the easy thing to do for the draftsmen to do it this way but it could have unfortunate consequences. Obviously, as Senator Yeats again said, there are cases where omission to do things clearly should be within this type of legislation. But there could be other cases where this would not be so; the situation, we know, exists in Northern Ireland. Of course, I would understand the Minister's position to be in regard to this that if he were going to consider the amendment: it does involve him in a fairly radical operation on the rest of the Bill, because if this is to be deleted it leads to the substitution of act or omission in a number of different sections.

I am speaking in an entirely non-party way; I am taking the line that we are here in an endeavour to produce the best and most acceptable type of legislation. I feel that I should encourage a consideration of this on this side.

If the position was as adverted to by the Senator certainly it would have to be considered. The suggestion is that mere passive silence could lead a person into a position of committing an offence. That is not so, there must be a positive omission. That omission must have the intent to impede the apprehension or prosecution in the State. Again, as Senators will see, there is a further saving for the person, in that "reasonable cause" comes into it in spite of the fact that the Opposition seek to delete the words "reasonable cause" in a subsequent amendment. There would be no question of mere possession of knowledge and not revealing that knowledge gratuitously. That cannot be an offence. There could be a situation where silence could be an offence. For example, that it could impede a prosecution, in that there would be a specific question asked. There might be a hunt on—we shall say — for a gunman. Some person might have knowledge of his whereabouts and deliberately tells a lie or refuses to answer. That would be a positive omission which, in my opinion, would be an offence, and rightly so, because a citizen, at that stage, would have a duty to assist the forces of law and order. If that person had a reasonable excuse — and reasonable excuse could be duress or intimidation—that would be a further defence for the person in failing to give knowledge. Therefore I do not think that a situation of mere silence in leading to a prosecution is something about which Senators need worry. It cannot arise. There has to be a positive intent to impede apprehension or prosecution.

Might I make one small point in support of the Minister's point of view? I have not had an opportunity, since Senator Yeats made his case, of going with a fine-tooth comb through the Act; possibly it is an exercise that would be worth undertaking. It seems to me that, up to about section 8, we are concerned with what might be regarded as the sections dealing with offences that can be committed. If one has a look at these, one would see that, in a very limited number of cases only, is an act referred to. Remember subsection (2) of section 1, which is the subject of this amendment, refers not to the law generally but it refers only to where the word "act" is used in this Bill. Obviously that applies in relation to subsection (4) and subsection (6) of section 2. The Minister demonstrated quite reasonably that, in those cases, it is right that an omission should carry the same penalty as an act. Section 4 subsection (3), is another section where the word "act" is used and where it is said that a person who in the State or (being an Irish citizen) outside the State unlawfully and maliciously—(a) does any act with intent to cause or conspires to cause ... Now, read in place of that "an omission", again it is an omission which is qualified by what is in paragraph (a), an omission with intent to cause and so on. If a person deliberately makes an omission with intent to cause an explosion of a nature likely to endanger life, is not it again reasonable that a person who, by his act of omission deliberately— because this is tied up with intent; therefore, it is deliberate—intends an explosion to be caused should be punished in the same way as the act itself? The point I am making is that it is in a very limited number of sections only that the word "act" is used. If one goes through this now although subject to the qualification I voiced at the start that I have not gone through it with a fine-tooth comb—one will find that, on each occasion where the word "act" is used, it is reasonable that "omission" could be used also.

I have gone through the Bill. I can go through specifically now the actual references to "act" in the Bill. It does show up the complete lack of any necessity for the global word "omission" as the Minister has set out in subsection (2) of section 1. Mind you, the word is "omission". There is nothing in it about a "positive omission". "Positive" may be a word generated by the Minister off the top of his head but "positive" is not in the Bill. What is in the Bill is "omission" and it is that about which we are concerned. In subsection (2) of section 1 there is the highly global definition of reference to an omission, that any reference to the doing of an act includes references to the making of an omission. In other words for "act" read "omission" right through this legislation. That is what it means; nothing about "positive omission" or anything of that kind.

I shall go through the various references to "act" in the Bill. We have it, first of all, in subsection (1) of section 2. That is straightforward enough; it refers to act or omission and it does not really relate to the point that I am going to make. The point I am making is that subsequently, as in the case of line 19 of section 3, there is the section which brings in the ancillary offence of being an accessory before or after the crime, as it were.

If the Senator is reading "omission" instead of "act" there, he should remember that it is omission with intent.

With intent.

So it must be a deliberate omission.

Omission with intent does bring one into a very philosophical realm of inquiry.

That is what is.

It raises the philosophical thing anyway.

As to the nature of the intention to commit an omission. But it is in the subsequent subsections of section 2, for instance, regarding the second reference to "act" in page 3, line 19, that one sees, I believe, the lack of necessity for the definition we seek to delete, because, in subsection (4), what is set out in relation to the main offence is: Where a person has committed an offence or attempted to commit any such offence, any other person, knowing or believing him to be guilty of the offence or attempt or of some other such offence or attempt, does without reasonable excuse any act with intent to impede his apprehension; in other words, this is a person who knows or believes him to be guilty of the offence and does any act with intent to impede. In my view that is sufficient to cover the State in regard to any apprehension such as is envisaged by the Minister in regard to a person committing the omission.

Only provided we mean "omission" as well as "act"—"act of omission".

Yes, that is my point, that it is unnecessary to have the global reference to "omission", as equally "act" when the Minister has included the various accessory aspects of doing the act, committing the offence. The various accessory aspects are covered, starting with subsection (4) of section 2, I have just mentioned, and continuing on to line 34, in page 3, incorporated in subsection (6). Again this is in relation to the person knowing or believing a person to be guilty of the offence and, without reasonable excuse, does any act with intent to impede his apprehension. That is similar to the one I have just mentioned. It is concerned about the person who is a party to the offence by way of "omission". It is clearly defined that in these two cases relating to section 2, the person, knowing or believing of the offence does, without reasonable excuse, any act to impede his apprehension or prosecution in the State shall be guilty of an offence. In these two subsections one is dealing with people who are assisting the offender and people who by way of "omission" may in any way impede apprehension or prosecution. I see no need for the definition of "omission" when one has got the main offence "padded up" to the extent it is in section 2.

On page 4, line 34, there is the very global definition there of the accessory offences, as it were, in regard to 1 (b) of section 3:

The reference in paragraph (a) to an offence specified in the Schedule includes aiding, abetting, counselling or procuring the commission of an offence there specified, attempting, conspiring or inciting another person to commit an offence there specified or an offence of doing without reasonable excuse any act with intent to impede the apprehension ...

With intent is the important thing.

There must be intention.

On the point quite reasonably made by Senator Yeats, as to whether there was danger that a person simply by being mute of malice and not saying anything could be caught, it seems clear, from all of these, that that could not happen, that it must be a deliberate omission, because if one reads "omission" instead of "act" and the words "with intent" follow it, then it is "omission with intent", in other words deliberate omission.

My point is slightly sideways to what Senator O'Higgins has just said. It is precisely because it is so defined in the sections I have just mentioned and one can take it that that is the pattern continuing; I have just referred to page 4, in regard to sections 15, 20 and 21, it is the same sort of pattern and, in all, there are eight cases in the Bill where these acts are set out and where they are deemed to be omissions. In each case it is fully defined, as the Leader of the House has just stated, that it must be done with intent, it must be an omission with intent, and, in my view, fully covered for the Minister's purposes.

The burden of what I am saying is— Senator Alexis FitzGerald referred to it as well—that putting in "omission" in a global manner in subsection (2) of section 1 is redundant to a Bill which covers amply the various ancillary and accessory offences relating to the major offence as defined in each section. One is reduced to the ridiculous situation where the only logic one can put on having "act" regarded as an "omission" is that it is "omission with intent" which is in the realm of fantasy, from the point of view of precise legal draftsmanship. If we have got the offence specified eight times in the Bill as the main offence in the particular section, then the various ancillary or accessory offences where the person, with intent, conspires, or is a party to, or incites another person in regard to an offence, in my view that is sufficient for the Minister's purpose without bringing in this very global reference in which every single act is regarded as an omission, when the draftsman has taken care of the problem amply eight times.

In section 15 it is the same situation— prevention of double jeopardy in that case—and in section 20——

That would be completely in ease.

I agree with the Minister in that respect.

With regard to sections 20 and 21, again it is the main charge under the Explosive Substances Act, 1883, and similar definition as to the ancillary or accessory aspects.

I should like to hear the Minister on the point put very succinctly by Senator Alexis FitzGerald, that is, is it not getting into the realm of non-proof or non-capacity to prove, particularly in a very precise and sensitive instrument of law, which this statute will be — and sensitive is putting it mildly if it is ever sought to enforce it? In a highly sensitive instrument of law is it not dangerous to have anything in the way of imprecision or anything which would seek to suggest that every act of omission relating to a particular offence, so far as omission has the meaning ascribed to it, would be regarded as an offence? Admittedly, it must be omission with intent. If the Minister is to have a Bill of this kind—to which we are totally opposed—would it not be better to have the language as precise as possible? It is a highly sensitive piece of legislation which will be subject to the most dedicated scrutiny if it ever becomes law. It will probably find itself in the Supreme Court and in the Court of Human Rights. Certainly if it ever becomes legislation it cannot afford to have loose or woolly definitions. As I see it, the Minister is covered amply for any imaginable type of ancillary or accessory act associated with an offence; he is amply covered wherever "act" is mentioned in relation to the main offence. There is a very real danger that one could conceivably bring in a type of person without any positive or conscious act or contribution towards an offence, a person merely standing by, a person who might be aware from his or her personal knowledge, or any other type of mental attitude of that kind. For instance, a person staying in the same "digs", guesthouse or lodging as a person who committed the offence might be presumed by the police to have knowledge of the offence having been committed and might have omitted doing anything about it. There one is entering the realm of inquiry into a person's state of mind, into his or her mens rea at the time of omitting with intent, which is a very rarified type of legal conception, to put it mildly. In my view it would be one that would be impossible of proof. It is a very dangerously imprecise definition to have written into subsection (2).

I want to emphasise that, basically, the Bill is incapable of amendment in any sense of the word. If the Minister wants to improve it, to remove from it imprecision of language, if this measure is ever sought to be implemented, it is important that practitioners, the public, above all the accused person and the courts and whatever other courts it may be dragged through— that everybody concerned will have before them an instrument of law which is precise in every way.

I would suggest to the Minister that he follow the suggestion made by Senator Alexis FitzGerald and, if he cannot make an immediate decision, give consideration between now and Report Stage to the deletion as Senator Yeats suggests in his amendment of subsection (2)—the section concerned with omission. By a clean deletion of it, there can be no misunderstanding of omission and no inquiry by the courts into what omission with intent means, which is a new legal conception as far as I am concerned, and would bring one into fantastic realms of investigation on the part of any court. The Minister can make a clean breast of it by deleting that subsection of section 1, in the knowledge that he is amply covered in regard to all the ancillary and accessory offences by the careful draftsmanship in all subsequent sections where "act" is referred to and where the ancillary and accessory definitions are brought in carefully in the drafting subsequent to "act" in each of the subsequent sections.

Basically, the problem with this is that the parliamentary draftsman, in his enthusiasm, has extended this definition too far. It is clearly necessary and unobjectionable that the offences specified in the Schedule should cover omissions as well as commissions. There has been a new concept introduced by the Minister of which certainly I have had no previous knowledge — the positive omission. I do not think one would object to these positive omissions being introduced into offences covered by the Schedule. Unfortunately the draftsman has also— I suspect, unwittingly—extended them to the problem presented by people who might be charged with impeding the apprehension or prosecution of persons.

In considering this Bill, we can never allow ourselves to forget the type of situation which, unfortunately, exists in most parts of Northern Ireland. We are used to a situation where people are on first name terms with the local members of the Garda Síochána and no problems arise of the type that arise, unfortunately, in most parts of Northern Ireland. Wide sections of the population simply do not accept the authority of the police or the other branches of the security forces—the Army, the UDR and so on.

When he comes to what the Minister described as a positive omission, consider a situation where a member of the RUC comes up to a man in a nationalist area and says "did you see so-and-so lately?" and gets the reply "go to hell" or maybe the answer is phrased in a more colourful fashion. Under the Minister's doctrine of the positive omission, I strongly suspect that that person could be promptly charged with impeding the apprehension or prosecution of some person, because he refuses to answer when he was asked had he seen him. He may even have seen him at breakfast that morning. There is a very serious danger that he could be covered.

The Minister could deal with the situation very simply. All he needs do is to delete subsection (2), as I have suggested. In section 2 (1) and one or two other places in the Bill, in the two places where "act" appears, he merely adds the words "or ommission", so that the subsection would read:

Where a person does, in Northern Ireland, an act or omission that, if done in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence and he shall be liable on conviction on indictment to the penalty to which he would have been liable if he had done the act or omission in the State.

That makes sense. I do not think any problem arises. Indeed, that is what is being done in the British Bill which has now gone through the House of Lords. Section 1 (1) of the Criminal Jurisdiction Bill, which is awaiting a Second Reading before the House of Commons, reads:

any act or omission which

(a) takes place in the Republic of Ireland, and

(b) would, if taking place in Northern Ireland, constitute an offence described in Part I of Schedule 1 to this Act,

shall, for the purposes of the law of Northern Ireland, constitute that offence.

So far as I know there is no definition of omission in the British Bill. We are quite simply told that these acts or omissions shall constitute an offence. I have suggested that the Minister should do with section 2 precisely what has already been done in this British Bill. In most cases, where there are divergences between the British Bill and ours, the British Bill errs against the accused. On this occasion, where there is a clear divergence, we err against the accused. We should remedy this. The Minister may well feel that it is not likely that, under the circumstances I have suggested, somebody would be prosecuted. I would hesitate to discount, in Northern Ireland conditions and with the type of attitude that people hold towards the police, and indeed that the police hold towards certain sections of the population, the possibility—perhaps a strong possibility—that prosecutions of this kind would take place. The Minister could certainly avoid any difficulties——

The prosecution would take place here. The prosecution would be in this jurisdiction.

The initial decision to prosecute will be taken in Northern Ireland.

The initial decision will be taken by the Attorney-General here.

If the Northern Ireland authorities go through the procedures in this Bill, saying that they want our courts to prosecute some named individual for some named offence, of course we have the possibility of saying that we will not do it. On the other hand, once this Bill, assuming it had gone through the Oireachtas and had become law, survives the Supreme Court and all the other problems it may face, it is very unlikely that our authorities would be inclined to say to the Northern Ireland people "we do not think there is any evidence in this case, we are not going to do it". It is far more likely that they would say "the case seems a bit weak, but let's leave it to the court". That would seem to be an obvious approach. Therefore, we must have regard to the nature of the decisions likely to be taken in Northern Ireland with regard to who should be prosecuted.

The decisions will be taken here.

It is a matter of semantics.

It is not.

The decision is to be taken in Northern Ireland as to who is to be presented to the courts here for prosecution. Our courts are not in a position to say that so-and-so committed an offence in Northern Ireland. The Northern Ireland authorities will say to us "we think so-and-so is guilty of a certain offence, will you please try him? So far as we know he is in Finglas".

That is not what happens. What will happen is that the Attorney-General will direct proceedings to be taken on foot of this Bill. He will direct those proceedings on the basis of whatever evidence is presented to him by the Garda. In the normal way the Attorney-General makes the direction. He will weigh up the case as it comes to him and if the case merits prosecution he will direct accordingly.

In a normal trial the Attorney-General acts on the evidence presented to him by the Garda here. But this is not a case of the Garda who are providing the evidence. The Attorney-General in this instance would have to direct a prosecution based on evidence provided by the Northern Ireland police.

Not "will have to"—"may".

All right, "may", but he is in no position to collect the evidence for himself. He has to act, if at all—he may refuse to act—on the basis of information supplied to him from Northern Ireland. If they say to the Attorney-General that the police authorities asked so-and-so whether he had seen a person who had committed murder and he refused to answer, and in that light they ask that he be prosecuted in the Republic, is the Attorney-General in any position to decline? Surely he has to wait until he has all the evidence?

I am not suggesting that if this definition stands these things will inevitably happen. I am suggesting that the definition, as it stands, would enable these things in certain circumstances to happen but one would hope that they would not. It would seem sensible, therefore, to change the wording, as I have suggested, so that these things cannot happen, and there is no specific provision in relation to impeding an arrest for these positive omissions, which, after all, do not exist in the British Bill. Why should we go further than they wish to go in this instance?

If I thought that the Bill, as drafted, could have the consequences Senators apprehend, I would be worried. First of all, it is not the intention to catch innocent people. The intention is to make sure that guilty people do not escape. The intention behind the draft, though some people may interpret the drafting as being over-wide, was that no guilty person would escape.

If the amendment suggested was to be made in the way Senator Yeats has suggested, to some extent we would have a contradictory position in so far as section 2 will refer to acts or omissions and the reference to omissions will be dropped from other sections. I do not know whether that would really improve the position if the objection is to this idea of omission. It is conceded that you can have an offence by omission. I have instanced the case of manslaughter. As Senator Yeats properly said, we cannot debate this Bill in a vacuum. We have to debate it with two eyes fixed seriously on the current situation.

We could have a cross-border situation and this Bill is meant to close loopholes and stop unworthy people escaping the consequences of their acts. The person in the digs, as Senator Lenihan said, or the casual passer-by who comes to knowledge cannot be guilty of an offence merely because he has knowledge. He has to go further and refrain from disclosing his knowledge or refrain from doing something with the positive intention of impeding apprehension or prosecution.

There has to be this positive element of mens rea. Whether there is mens rea in a particular case is for the trial court to assess. This is a feature that is constant in every criminal case that comes before the court. The court can only assess that from the circumstances surrounding the behaviour of the parties and from all the evidence available to the court to decide whether there was a positive intention to commit an offence. The offence in this case would be to impede the apprehension or prosecution by the State. If it is to involve an omission from doing something, it would have to be, to use a metaphysical term, a positive omission

For example, if a person offered himself to the Garda as being in a position to convey certain positive information that came his way that arms were put in a certain house, and indicated that when he would get that information it would be available to the authorities, he would be a good citizen, this is what a good citizen would do. Suppose afterwards he deliberately said nothing—knowing that the police, because of their earlier relationship with him, would expect him to tell them—this would be an act of omission. That would be in a different category to the type of innocent people represented in the debate so far. In the situation we are in in this unhappy island at the moment this is the type of thing we have to keep in mind.

When we consider the drafting in the light of that example, and I venture to suggest that it is not an extreme example, it could happen very simply on this island at this moment, we would see that the draftsman, in including the definition in subsection (2) of section 1, was being prudently careful and not just semantically careful. I share the Senators' apprehensions about this. I have looked at the British draft, as Senator Yeats has drawn my attention to it, and the drafting is different there. I will consider the points that have been made here because I would be very concerned to ensure that in trying to make sure no guilty people escape, we do not unwittingly get any innocent people as well. We must balance that with the reverse of the coin to make sure that no unworthy people escape by leading the police to expect help from them and then concealing information knowing that, because help was expected when it is not forthcoming, the police will assume no offence has been committed. There is a genuine dilemma here.

I am sensible to what Senators have suggested and sensible to their worries. I would not like at this stage to accept the amendment but if they postpone it, I will consider it between now and Report Stage to see if the drafting could be changed in such a way that it would meet the apprehensions of Senators. I genuinely feel that the apprehensions are misplaced and that they are due to an extreme and, indeed I venture to suggest with respect, an inaccurate interpretation of the sections in regard to which the apprehensions are expressed. That is my view fairly strongly. Nevertheless, I will consider this further to see if that is an erroneous view. If it is or if I think that what the draftsman and myself set out to do in the Bill can be done by taking the amendment or the spirit of the amendment, then I will certainly do so. I cannot accept the amendment at this stage but I will consider it between now and Report Stage.

I thank the Minister for taking another look at this matter. On that basis I am willing to withdraw the amendment. I would like to say a few things before I withdraw the amendment. First of all, I would again urge him to have regard to the different situations which exists in many parts of Northern Ireland. If it were to be provided, as indeed it is provided, in Irish legislation that if a guard goes to a house and cross-examines one of the inhabitants of the house about someone's whereabouts, and what he knows about him, and the person refuses to answer, I would be entirely in favour of his being prosecuted. It would seem a reasonable step to take. In many areas it becomes an act of faith not to cooperate in any way with the police, to refuse to answer, even to talk to them. In the circumstances, I do not think we can consider these matters in quite the same way as we would in relation to legal and practical situations in the Republic. I would urge the Minister to have regard to that.

Secondly I would ask him to have regard also to the provisions in the British Bill which appear in several places to correspond with ours about impeding arrest and so on. For example, section 3, (4) (e), which talks about doing any act with intent to impede the arrest or prosecution of a person who has committed an offence, here there is nothing about an omission. It is a plain ordinary doing of any act with intent to impede the arrest or prosecution. If they can phrase their Bill in that way there seems no reason why we could not do the same. Why should we go further than they have sought to do, particularly in view of the fact that there appears to be danger that this reference to omissions could have untoward effects?

Again, I thank the Minister for agreeing to consider this matter and I am willing to withdraw my amendment.

Amendement, by leave, withdrawn.

Section 1 agreed to.

I move amendment No. 2:

2. In subsection (1), line 35, after "act" to insert "that constitutes an offence in Northern Ireland and".

The purpose of this amendment is to bring the section into conformity with the principles which normally govern extradition, that is to say, if State A asks State B to extradite a person because of an offence committed in State A, normally State B will not extradite unless the offence is also an offence in State B. Consequently, the approach is that there must be the same kind of alleged offence in both States before the extradition will apply. Accordingly, it is unreasonable to create an offence as section 2 does, in relation to something that may be an offence in the State here but for one reason or another is not an offence in Northern Ireland. As far as possible, this Bill should conform with the normal principles applicable to extradition. I see no reason why this amendment should not be accepted so as to create the situation that the offence must be an offence, not only in this part of the country but also in the North of Ireland.

There is no difference in principle between Senator Ryan and the Government on this point. At the same time I cannot accept the amendment. It is unnecessary to give effect to the policy point he makes that the law should be the same. In practice, it would be inconvenient to do so. The law as to the offences in question is almost similar in both parts of Ireland. The offences scheduled in this Bill are exactly similar to the offences scheduled in the British Bill. A lot of care had to be taken that they would be so similar, because it would be anomalous to have a person triable down here for an offence committed in Northern Ireland which if tried there would not be an offence at all. These are the sort of anomalies we had to guard against when we were drafting this Bill. We did this by having the offences identical.

We have made certain amendments in our criminal law, amendments which were necessary in their own right but which are also necessary in the interests of similarity. We have been careful to have the maximum penalties equated. We had to take account of the different laws in the two jurisdictions relating to capital punishment. We have provided that in case of murder which if committed here would be a capital murder but if committed in Northern Ireland would not attract the death penalty, it will not be capital down here. I think it would be anomalous to have any other situation arise.

The criminal laws in both parts cannot be identical comma for comma, because divergences have occurred during the past 50 years. Basically the two systems are the same. Changes are made, not simultaneously, or concurrently, in both criminal codes. The one area in which a divergence has come—it is marginal in regard to this Bill—is the area of stealing—dishonesty. The Theft Act in Britain has widened the definition of stealing and got away from the technicalities of the Larceny Act of 1916 and the distinctions made in that. We have moved some way towards the latter objective in this Bill by assimilating our definitions of burglary and robbery.

Senator Robinson made the point in the Second Stage debate that we have not really done so because we have not changed the definition of stealing from the Larceny Act, 1916 definition to the British Theft Act definition. I do not think that is a good point, because the English statute is so wide that it embraces our offence of stealing. If a person is to be tried extra-territorially here on the offence of burglary or robbery, the stealing involved will be bound to be stealing in accordance with our Larceny Act. That does not necessarily rule it out from being also a crime in Northern Ireland. If the wider situation were here, there would be room for worry and there would be a contradiction from our point of view.

For all practical purposes, there is no disagreement between Senator E. Ryan and ourselves on the principle behind this amendment. I suggest to him that the principle is met by the fact that the offences in both Bills are similar and there is a specific range of offences set out in the Schedule as having this extra-territorial effect.

I said earlier that the amendment will have an inconvenient consequence but we should not let inconvenience stand in the way of improving a Bill. Perhaps the word "inconvenience" is too mild. If the amendment were to be accepted, it would mean that in every extra-territorial prosecution in our courts there would have to be expert evidence to prove that the offence in question was an offence against Northern Ireland law. In other words there would have to be expert evidence to prove in every case what the Northern Ireland law was. That would be an inconvenience that would be out of proportion with what was sought to be gained. There is nothing to be gained because of the careful scheduling of the offences in identical terms in both the British statute and this statute.

I agree that as things stand at the moment this amendment may not be necessary, but by putting it in, it would make the point that this situation, where it must be an offence in both parts of the country, was the intention in the Bill and should be maintained. If this amendment is not included, it would be open to a future Minister to amend the Schedule by including offences which were not necessarily offences under the United Kingdom Bill. It would make clear that the Minister is, in fact, adopting the principle that the offence should be an offence in both parts of the country, whereas at present it may be thought that this is just by coincidence.

The offences set out in the Schedule are what might be called peculiarly Irish offences. It could be called "a morbid beginning to an Irish dimension" because these offences have a specific extra-territorial effect on this island, with the exception of the explosive substances offence.

What about the seizure of aircraft?

That is covered by the Hijacking Convention. Another basic principle behind this Bill is that it is a reciprocal Bill. It is inconceivable to think that a Government here would move unilaterally in the future to declare an offence to be a scheduled offence, or to have extra-territorial effect, without having reciprocation from the other authority. The offence could not be prosecuted here unless there was administrative reciprocation on the part of the police forces to provide the evidence for prosecution. Consequently, there cannot be unilateral change. By definition, unilateral change in this area would be out of the question. There would have to be reciprocation. I cannot ever see a situation arising where a Government here would declare something to be an offence extra-territorially which was not already an offence in Northern Ireland or which was not being reciprocated. It would lead to an anomalous situation to have a person charged and sent to gaol for something done in Northern Ireland and for which, if he were charged in Northern Ireland, he would be acquitted, or it might not even qualify as an offence.

The best way to deal with Senator E. Ryan's apprehensions is the system adopted in the Bill. That is, to schedule the offences and have similar offences scheduled in the British Bill. If amendments or extensions are needed it can only be done on the basis of reciprocation. If at any time there is not full reciprocation or full working of the spirit of this legislation, then either party can unilaterally cease to operate it. As this is a Bill that is in ease of both communities that thought is inconceivable.

There is considerable merit in what Senator Ryan has stated in regard to the future situation. The Minister may say that he does not envisage a situation where there will not be reciprocities between the two administrations with regard to any changes in the Schedule, but it is not an inconceivable situation. A statute as basic and as sensitive as this, if it ever becomes law, should envisage all possible situations that may prejudice the accused. An elementary safeguard which could be written into the section is in the amendment proposed by Senator Ryan, which, as the Minister is aware, without any great difficulty in draftsmanship, could be incorporated in the section to make it quite clear that an offence concerned must constitute an offence in Northern Ireland so as to have, without any doubt, the offence and offender completely covered in regard to all possible aspects of the Bill as well as being in the Schedule in our Bill. That Schedule may be changed or amended in the future. That is a hypothetical situation.

That the offence specified in the Schedule shall always be an offence that constitutes such in Northern Ireland appeals to me to be a reasonable way to ensure a complete equation between any charges under the section in the future in regard to particular offences. This equation would always have to exist from the statutory point of view, the equation between the offence specified in the Schedule being always an offence constituting such in Northern Ireland. It is cleaner draftsmanship and removes any anomalies or uncertainties that could arise hypothetically or conceivably in future in regard to changes or amendments in the Schedule to this Bill.

If there were any such change or amendment, the person apprehended by reason of such amendment should be put in the situation that when he is apprehended down here he must be in breach of an offence contrary to Northern Ireland law. In my view it is not a requirement that would envisage the difficulty mentioned by the Minister of bringing in expert evidence. Surely in that type of situation the production of the relevant statute would be sufficient. If the relevant Northern Ireland statute setting out the offence has the same wording as the offence Schedule——

The Northern Ireland statute would not prove itself in our courts.

If the Minister can elaborate on that aspect, I would like to hear him.

It would not be judicially noted. Our statutes prove themselves because they are judicially noted. There would be no judicial notice of the statutes of a foreign power, if I might use that term.

This Bill brings in the principle of extra-territoriality. Senators on this side of the House are not responsible for bringing the foreign Parliament into the matter. If the foreign Parliament is brought into the matter and if it does require proof of the statute in our courts, this merely adds to the headaches the Minister is bringing on himself in introducing the whole principle of extra-territoriality. Senator Ryan suggested that if he is bringing in this highly difficult and, in our view, unworkable principle and enshrining it in a piece of legislation, at least in regard to the offences——

We do not want to start a certain debate again.

——committed in Northern Ireland and where the offender is being apprehended in this part of Ireland, it surely is logical as far as draftmanship is concerned, to ensure that, in the future, not just as of now where there is an identity, this identity can be written into statute and made to continue by ensuring that at all stages the offence with which he is charged constitutes an offence in Northern Ireland as well as being embodied in the Schedule to our legislation.

I want to make a point which probably does not agree with the views of either the Minister or Senator Ryan, although I appreciate both views. I appreciate that care has been taken in the drafting to ensure that precisely what Senator Ryan wants to do in his amendment is, in fact, done in the Bill. The act referred to in section 2 must be related to the offences set out in the Schedule to the Bill. Therefore, so long as the scheduled offences here are also offences in the North, the precaution Senator Eoin Ryan suggests should be taken is obviously unnecessary.

I want to look at it from another point of view. Supposing it were discovered that one or more of the scheduled matters in this Bill was in fact not an offence in the North, I do not know what the process is in the North for challenging things on constitutional grounds. Let us suppose that it was possible for someone in the North of Ireland who had been charged in the North with kidnapping, to take an example: supposing that person successfully challenged in the court that kidnapping was not an offence under Northern Ireland law, we might then meet with the situation where one of the scheduled matters suddenly, through unforeseen circumstances, is no longer an offence in the North.

If Senator Ryan's amendment were accepted, the effect of accepting it would be that, in the circumstances of which I talk, kidnapping would be exempt from the provisions of this Bill. I do not think this would be the desire of the Legislature here. If acts are committed which come within the terms of the various matters set out in the Schedule here, we should be content to take the decision that, in those circumstances, once the act would be an offence against our law, if we choose we will be prepared to prosecute whether or not it is an offence against the law in Northern Ireland.

Let us take an example of an Irish citizen—I am talking of an Irish citizen within the meaning of our citizenship and nationality Act—who goes up from south of the Border and commits an act which comes in under the scheduled matters here, I believe we should have the courage to say that we would prosecute that person and punish him if he is convicted in accordance with our laws, regardless of whether it is an offence in the North. That is not the intention of the Bill. Great care has been taken to see that the scheduled offences tally with those of the other Bill to ensure that a person effectively will only be arrested and prosecuted and put on trial here, if the offence is also an offence in the North. To my mind, it is not necessary that we should go as far as that in every case. I could conceive circumstances where we might find it desirable, either because of self-respect in our views of what is right and wrong, or because of the desire for reconciliation and better relations, to act regardless of whether the particular set of circumstances technically constitutes an offence in the North.

When I read this amendment first I was in favour of it but, as I think about it, it seems to me to be in principle wrong that we should restrict the exercise of our own sovereignty with regard to this and so put ourselves in a position that the Parliament of another country could remove something from the rank of punishable offences here by an amendment of their own law. It seems to me that it is an act of sovereignty to rule extra-territorially. That seems to be agreed, and it is for us to decide what are the offences we are going to go after. We know there is concurrent legislation but, even if there was not, we might be taking a line on this irrespective of that. That is my feeling about it.

Our sovereignty is limited in the parallel which I mentioned earlier on in regard to extradition. No matter what offence we think should be created—and we have the sovereign right to create any offences we think desirable—nevertheless if we try to extradite somebody from another country the other country will not comply with our request if it is not an offence in that country. Accordingly, the same principle should be adopted in this Bill. The Bill is making a very serious departure from the normal law. It is something we should watch very carefully and, in so far as possible, I suggest it should be in conformity with the principles normally applicable to extradition.

I certainly would not agree with Senator O'Higgins that we should feel free to put further offences on the Schedule whether or not these were offences in Northern Ireland. That would be a very dangerous precedent. The Minister seems to agree with me about that.

I agree that, as things stand at the moment, the amendment may not be necessary because the offences are the same in both Bills and the same in both Schedules. I was anxious to include this amendment so that the principle which I mentioned would be clearly stated and written into the Bill so that if, for example, Senator O'Higgins was Minister for Justice in the future, he would not feel free to add to the offences in the Schedule down here because the principle would be written into the Bill that something which was not an offence in Northern Ireland could not be operated upon by this Bill. Consequently to protect any amendment of the Bill in the future this amendment would be useful. I agree that, as things stand at the moment——

It could be amended by taking out the amendment.

I do not underestimate the Senator's ingenuity. For that purpose the amendment would be useful.

I think everyone agrees that at present the insertion of the amendment would have no particular effect. As Senator Ryan has pointed out, the situation could change in future either because we added offences to the Schedule which were not offences in Northern Ireland, or alternatively because in Northern Ireland whatever administration were responsible could delete these matters from the Schedule. Either way we would have the position that there were extra-territorial offences which could be prosecuted here which are not offences in Northern Ireland. I was somewhat scandalised to hear the cheerful way in which Senator O'Higgins and Senator Alexis FitzGerald apparently would favour the prospect of our continuing to prosecute people for these offences. There could be a ludicrous situation where if somebody committed in Northern Ireland what in our law was an offence so long as he was on this side of the Border he could be prosecuted but, as soon as he went back home amongst the people against whom he had committed this offence, he could no longer be prosecuted.

He might be coming back home down here.

It does not matter where his home is. So long as he stays on this side of the Border he can be prosecuted, but when he goes back to where he committed the offence he is not prosecuted. This would be a ludicrous situation. I do not think the Minister could envisage such a situation arising or would be prepared to tolerate it.

The only real point—and it is a good point—raised by the Minister against accepting this amendment was the practical one of the considerable inconvenience which would be caused each time a case came up by having to prove by expert evidence that it was, in fact, the law in Northern Ireland and that these offences were offences in Northern Ireland. The Minister has solved this problem in two sections of his own Bill. Section 8 deals with possession of firearms or ammunition in suspicious circumstances. Subsection (2) of that section states:

In the application of section 2 of the Criminal Law (Jurisdiction) Act, 1975, to this section, it shall be presumed, unless the contrary is shown, that a purpose that is unlawful in the State is unlawful in Northern Ireland.

Section 10, subsection (2) states:

In the application of section 2 to this section, it shall be presumed, unless the contrary is shown, that a purpose that is unlawful in the State is unlawful in Northern Ireland.

I would have thought that he could cover this whole situation by adding a tenth subsection to section 2 covering this point in the same kind of way and that it could be presumed, unless the contrary is shown, that an offence under this section is an offence in Northern Ireland. If anyone sought to raise the issue that the offence concerned was not an offence in Northern Ireland then it would be up to him to prove it. That situation would not normally arise, and I would have thought that the Minister could deal with the whole matter in the way he has dealt with it in other respects in sections 8 and 10.

There is no real need for the amendment. What it proposes to do is to ensure that there are no anomalous situations of the type suggested by Senators, that a person could be tried and convicted in our courts for something done in Northern Ireland when if tried in Northern Ireland, he would be acquitted. We want to avoid those anomalies, and they are avoided by having a common scheduling of offences between this Bill and the appropriate United Kingdom Bill.

As to the future, even if we were to accept Senator Ryan's amendment, there is no guarantee that on a future date bearing in mind the dread thought that Senator O'Higgins would be Minister for Justice it could be unamended and we would be back to this position again. From what has been said there is some implication that somehow new extra-territorial offences can be introduced. They can, but they can only be introduced by the Oireachtas. To try to put a limit on it at this stage is not real, because we cannot legislate now for what next year's Parliament will do. It is unreal to suggest that it would make any difference or that it would prevent the creation of anomalous situations in the future. I do not think that Senator Yeats' suggestion, ingenious as it is, would meet the difficulty of proving substantive law. In any event, I do not think it would meet what Senator Ryan has in mind. Senator Ryan has in mind that the substantive law in the North and in the South in regard to specified offence would be the same. Senator Yeats is saying that they should be presumed to be the same. It does not follow that they would actually be the same or that the ingredients would be identical. Therefore it does not remove the danger that the anomaly which Senator Ryan properly apprehends and which I apprehended too, might not arise.

On the question of extra-territoriality there was some shock from the other side at the suggestion by Senator O'Higgins and Senator FitzGerald that a Parliament can take upon itself to declare certain things to be extra-territorial offences, unilaterally. This can be done and it is not inconsistent with the theory or the notion of extra-territoriality. There does not have to be reciprocating legislation in another jurisdiction. There does not have to be in this because, if you like, it is being done in the Irish context. It is only right that there would be reciprocating jurisdiction and that the extra-territorial offences would be identical in both jurisdictions. Again, on the principles of international law, they justify extra-territoriality. The protective principle, for example, would allow a sovereign nation to declare an offence to be extra-territorial if it were for the protection of the nation or its subjects, notwithstanding that there might be no reciprocation from any other country in the world. That, however, is by the way.

As Senator Ryan conceded, the present Bill meets what he worries about. I would respectfully suggest to him that to try and legislate for the future is not real, because the future Legislature might undo the amendment even if we were to accept it now. It still leaves the practical difficulty of proving the law of the other jurisdiction in our courts.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

It is proposed to discuss amendments Nos. 3, 4 and 5 together.

I move amendment No. 3:

In subsection (2), line 41, to delete "in the State or".

I suggest that the words "in the State or" where they appear are unnecessary. Section 2 (1) creates a situation where an act done in Northern Ireland is an offence in the State. That is the position. A person is tried not for something done in the North of Ireland but for an offence committed here. The whole conception of this Bill is a rather artificial one. It is artificial in the sense that the act done in one place is an offence in the other. That being the case, anybody who aids, abets, counsels or procures the commission of an offence where the offence is an offence in the State, is guilty of an offence. Consequently it is not necessary, in my view, to cover the position where a person in the State does the aiding or abetting. It is, of course, necessary to cover the situation where somebody in the North of Ireland aids or abets an offence, an act done up there and, for that reason, I suggest that the ordinary law of the State as it exists, covers the situation where somebody aids or abets or counsels the commission of an offence and consequently it is not necessary to put in the words "in the State or" where they appear on the Bill.

I take it the Senator is dealing with amendments Nos. 3, 4, and 5. The same arguments will apply to each of them. Section 2 of subsection (2) of the Bill deals with the question of aiding and abetting an offence and being an accessory before the fact—of counselling and procuring. The subsection secures that it shall be an offence, for example, to aid and abet in the State the commission of an offence in Northern Ireland, and it shall be an offence to aid and abet in Northern Ireland the commission of an offence in Northern Ireland, and to aid and abet in Northern Ireland the commission of an offence in the State. These amendments now seek to remove the provision that it shall be an offence to aid and abet in the State an offence in Northern Ireland. This should be criminal. It would be a loophole if it were not to be so. Senator Ryan feels that it is unnecessary to provide for aiding and abetting in the State because subsection (1) already provides for that by making something done in the North an offence against the law of the State and because this would have the result that aiding and abetting in the State would also be an offence under the ordinary criminal law here. This might be so, but the reason it is drafted like this is that it is not completely clear that this would be so. The explanatory memorandum at paragraph 5, deals with this point:

In the absence of the subsection the fact that an element of the offence involves conduct in Northern Ireland would make it at least doubtful, in spite of subsection (1), whether these activities would be criminal under the law of the State.

So this is something we were alive to and the words are not just superfluous or extra. We think they have a real meaning there, and there is a real need for them there. I take Senator Ryan's point. With the words omitted that point is possibly a good point, but it is not conclusive and, to remove the doubt and the risk that it might not be a good point, the words are in. They do not do any harm. They do not prejudice the position of any parties, but they do put the matter beyond r gu ment.

Amendment, by leave, withdrawn.
Amendments Nos. 4 and 5 not moved.

An Leas-Chathaoirleach

It is proposed to discuss amendments Nos. 6 and 8 together.

I move amendment No. 6:

In subsection (4), line 19, to delete "without reasonable excuse".

Deleting "without reasonable excuse" seems to be removing a certain protection an accused person might have. I agree from one point of view that it seems to be in ease of an accused person to include the words. On the other hand, we had a good deal of discussion here earlier about mens rea, and so on, and it is not necessary because, unless it was shown that the person intended to commit the offence, which obviously would have to exclude without reasonable excuse, it would not, in fact, be an offence. The objection to my mind in having the words “without reasonable excuse” is that it seems to shift the onus of proof. It tends to shift the onus and ask the accused person to show that he had some reasonable excuse for doing the particular act. Consequently, on the one hand, it does not really add anything to the defence that a person may have to the alleged offence. On the other hand, it shifts the onus of proof in certain circumstances. For that reason it would be better to leave out these words.

I would respectfully disagree with Senator Ryan here. The words are important in this legislation. The two offences in question are offences of doing an act with intent to impede the apprehension or prosecution of a person who has and whom the person concerned knows or believes to have committed the main offence in question.

The ancillary offences then, in subsections (4) and (6), consist of doing an act of the kind mentioned without reasonable excuse. The effect of the amendment would be to take away this defence from the persons concerned. This should be a defence in any event if the person could show that there was a reasonable excuse.

Surely that is the position.

That might not be a defence. It would be a defence if it were raised sufficiently strongly so as to rebut mens rea. That would have to be done. If it did not do that, it would be there in mitigation, if it did not go the whole way in removing the idea of mens rea. By inserting the words “without reasonable excuse” instead of shifting a burden on to a person to, in effect, prove himself innocent, we are easing the position of a person of having to show that he could not possibly have had mens rea, because the amount of proof that would be required would be merely evidential, it would not be persuasive; you would merely have to raise the notion of reasonable excuse and it would be for the prosecution then to rebut it. There would be no persuasive onus on a defendant in a situation under this subsection. The burden of proof to be discharged by the defendant would be evidential only.

Cases where such a defence would be open would be rare. In the interests of humanity it would be wrong in this statute and, bearing in mind what was urged on me earlier, we must legislate with two eyes on the real situation in this island. There are genuine fears which would not amount to duress; indeed we have had cases of misguided loyalty and that might be a reasonable excuse.

My intention in introducing these words was to make the position of a defendant easier in what could be a difficult situation for him personally. I am satisfied that it does not impose any burden on him to prove his innocence. I am advised that the only burden he has to discharge is the bare evidential burden; in effect, to raise the plea and it is then a matter for the prosecution to rebut the plea.

The Minister says that the words which Senator Ryan wants to have deleted are important and are in ease of the accused, that they reduce the burden on the accused to prove he is innocent. In the light of that statement I should point out to the Minister that these words do not appear in the British Bill. If one takes section 6 of the British Bill, at the bottom of page 4, which states:

(1) In this section "substantive offence" means—

2(c) an offence under section 4 of the Criminal Law Act (Northern Ireland) 1967 of doing any act with intent to impede the arrest or prosecution of a person who has committed a substantive offence or who has committed an arrestable offence under the preceding provisions of this subsection.

The same phraseology is used in section 3 of the same Bill. It speaks of a person doing any act with intent to impede the arrest or prosecution of a person and so on; this is subsection 4 (b) of 3.

Here we have the situation where the law will be different on these matters in Northern Ireland and the Republic. Though the Minister may say that if a trial is being held under this Bill in the Republic our courts will presumably apply the words "without reasonable excuse", nonetheless, we must envisage a situation, for example, where under section 14 of this Bill an accused might be thinking of opting for trial in Northern Ireland. Whatever might determine an accused in a particular case to opt under section 14 to be tried in Northern Ireland, he certainly will not do so if he finds that the burden of proof is on him of proving his innocence under their law as against ours.

On a point of information, the Senator referred to section 6 of the British Bill and to subsection (2) (c) which talks about an offence under section 4 of the Criminal Law Act (Northern Ireland), 1967 of doing an act with intent. Section 4 of the Criminal Law Act, 1967 uses the words "reasonable excuse". Therefore, that has not been written into the Criminal Jurisdiction Bill of the United Kingdom Parliament. It merely repeats section 4 of the 1967 Act. The words "reasonable excuse" are imported into the United Kingdom Criminal Jurisdiction Bill by virtue of reciting the Statute of 1967 which uses these words.

Does this apply also to section 3, subsection (4) (e)? This is an offence of this kind committed in the Republic which, of course, can be tried under the law of Northern Ireland. In subsection (4) it says:

In this section and the following provisions of this Act "extra-territorial offence under the law of the Republic of Ireland" means any offence under the law of the Republic of Ireland which—

and paragraph (e) states:

is doing any act with intent to impede the arrest or prosecution of a person who has committed an offence—

I do not know if "reasonable" can be brought in under this heading.

I take it the Senator is not asking me to interpret a UK Bill, because that is what he is now quoting from. I read that merely as setting out what are the extra-territorial offences, and that is one of them. It has to be read in conjunction with section 6.

I will concentrate on the words in our Bill. The offence is to attempt without reasonable excuse any act with intent. The words "without reasonable excuse" are written into the offence: the offence is to attempt to commit the offence without reasonable excuse, any such act and so on. That shifts the onus of proof. Once the offence is defined as an offence done without reasonable excuse that, per se, means that the accused person must give evidence on what the reason was for committing the act. With the deletion of the words “without reasonable excuse” as suggested in the two amendments, there is no shifting of the burden of proof, there is merely the statement of offence, that is, the act with intent to impede the apprehension in one case and something similar in the other. The act is then proved by the State and the accused may or may not plead reasonable excuse. It is a matter for State proof to advance the evidence about the act and then the matter is strictly for the accused to raise in his defence the reasonable excuse, or to make the State prove their case and he need not raise any evidence of a reasonable excuse whatever.

That is the correct classical position in regard to the law—that he either puts the State completely on proof in regard to their evidence, with the burden of proof moving from the State to the accused, or if the State does prove an act which raises questions which the accused must discharge in order to avoid conviction, the accused may give evidence either personally or through a witness as to a reasonable excuse. That is the classical position in regard to a trial of anybody at criminal law. That is why there is no doubt about it that the insertion of the words "without reasonable excuse" shifts the burden of proof.

It is not in ease of the accused. I want to discharge the notion from anybody's mind that writing that into the statute as being, in effect, the offence, the offence of doing the act without reasonable excuse, means that the accused must give evidence of his or her reasonable excuse. The onus in regard to the reasonable excuse, that is a vital proof in regard to the offence, is shifted from the State, which is there to prove the offence, over the accused man who is now under the obligation to give evidence as to the reasonable excuse aspect that is written into the offence with which he is charged. It is only the accused, or somebody on his behalf, who can give evidence of the reasonable excuse.

The State, obviously, would not be in a position in 99.9 per cent of cases to give evidence of a reasonable excuse. So the reasonable excuse that would form part of the classical ordinary defence on the part of the accused, if the accused had to give it is absent. In many cases, of course, the State, carrying the full burden of proof, is on proof to prove the offence and the accused in the ordinary course of putting the State on proof, need not advance any reasonable excuse. In many such cases, if the State proved its case to such an extent that in the course of trial the onus does shift of the discharge of some of the proofs advanced by the State to convict him, then the accused may advance whatever reasonable excuses he or she may wish at the trial. It is not written into statute as in this case where the writing of it into statute in this manner automatically puts the accused on proof straight away, without putting the State on full proof in regard to the offence. It shifts the proof in regard to a reasonable excuse to the accused who, therefore, has to discharge this aspect. That is shifting the burden of proof in the classical sense of the word. The Minister knows all about this area. I heard him on the Offences Against the State Bill arguing this ad infinitum over a period of days in December, 1972.

If Senator Lenihan is right in one of his arguments he is nearly ipso facto wrong in the other.

Not necessarily.

I will try to show it in a moment.

Basically, this is a burden of proof point. As I said, we argued it on the Offences Against the State Bill, a measure under our own control, with our police force involved and our administration of justice and our courts involved. Even though we were taking a necessary stance at the time, at least we had everything under our own control. It meant that an Irish police force, our courts and our administration of justice were all involved in the whole process, as the Minister well knows, leading to the apprehension and conviction before the special courts of offenders under the Offences Against the State Act. That is a different situation to the one we are examining in this piece of highly sensitive legislation, involving the new principle of extra-territoriality.

Not new.

A new principle in the context of offences between Northern Ireland and the Republic, a new principle in regard to the offences set out in the Schedule, which the Minister is obviously seeking to ensure that we enact, not just under the umbrella of our own system of administration, not just under the umbrella of our own Garda force and not under the umbrella of our own courts, but under the very leaky umbrella of a highly suspect system of administration of justice, a highly suspect police force, a highly suspect security organisation. Under that very leaky umbrella we are now seeking, as it were, to organise a mutual system of extra-territorial exchange and supposed trial of offenders.

It will be under our courts entirely.

We had this out on Second Stage. The Minister is well aware that what is proposed——

The Opposition will not accept what is there.

——in one section of the Bill—I have a number of amendments down to it subsequently—is to make provision for the despatch of offenders down here who have been released and given bail by an Irish court.

Could we keep to this amendment?

This illustrates the sort of administration of justice with which we are dealing under this Bill as a whole. I will be very brief on a subsequent section which provides for the exchange of such alleged offenders from freedom down here into custody up there, under a system of administration of justice which we have indicted in the European Court of Human Rights before which proceedings are at present going ahead on behalf of the Irish Government. It is in that context that we have a shifting of the burden of proof here by incorporating the words "without reasonable excuse" as part of the offence.

We have here a situation that the accused person must advance his or her reasonable excuse because that is the offence with which the person is charged. It has happened in laws within our own control that the onus of proof has shifted. I do not mind it happening as long as we are in control of the administration of justice or that we are engaged in a form of extra-territoriality with civilised nations whom we can respect as we do under the extradition arrangements. What we are doing here in this highly sensitive area, dealing with a highly suspect system of administration of justice, is shifting the onus of proof and placing the onus on the accused person to advance his or her reasonable excuse without any proof from the State. It would be so easy, in this instance, to stay with the classical system of criminal apprehension and trial. The classical system, as I have always envisaged it, is that the proof does not shift. We have legislation where the proof does shift, under the Offences Against the State Act, but in this highly sensitive measure, surely it is an obligation on the Minister for Justice to ensure that the most classic, most civilised, most equitable criteria are adopted in regard to apprehension and conviction of any offender.

We are dealing with people who have no such qualms in regard to many of these aspects. We would be exchanging offenders hypothetically—it is largely hypothetical anyway as my stance has made it quite plain; I think it is unworkable in the extreme in toto—with a highly suspect administration. In that context it at least behoves us, who have observed reasonably civilised standards in this area since the formation of the State, to have nothing but the most equitable criteria in regard to the apprehension and trial of offenders. The offence can then be put on proof by the State to be rebutted by the accused if necessary, and only if necessary, because the first onus on the State is to prove its case in a prima facie manner.

If it successfully proves its case and shows intent, the accused then can rely on——

I am talking about the case where the State may unsuccessfully put its case on proof.

Then there is an acquittal and it does not arise.

Here the Minister is writing in that the offence is that he does it without any reasonable excuse.

That is the offence that the State must prove, not the accused.

That makes nonsense of the whole section because the plain meaning of the section is that the reasonable excuse is a matter that is primarily and entirely within the competence of the defendant, the accused or his or her witnesses to prove and to discharge. That is the burden of what I am saying. I should like to ask the Minister one question in this respect, and I think it is a very fair question.

With the deletion of the three words that are recommended in these two amendments, does the section basically or in any way suffer from the definition point of view? The offence is clearly defined, the act done, which is a matter capable of proof and we disregard as the superfluous "without reasonable excuse" which tends to put the matter over into the accused's court in regard to proof. Our amendments place the proof fairly and squarely on the State's shoulders in regard to proving the act concerned.

It is there in any event: the State must prove its case.

Does the act suffer in any way by the deletion?

No, but the defendant's position does.

The Minister is under a misapprehension here. This is not in ease of the defendant. It is adding a further burden or two to the defendant.

There are things which Senator Lenihan is overlooking. The first thing is that we are talking about trials within our jurisdiction—in our courts before our judges. We are talking about trials which are being conducted according to our laws of evidence now. That is the first thing that Senator Lenihan seems to overlook. The second thing is, assuming he is correct when he says that the offence is doing an act without reasonable excuse—that that is the offence—Senator Lenihan draws from that the conclusion that because that is the offence the onus of proof is immediately put on the defendant. If Senator Lenihan is correct in that, that the offence is the offence of doing without reasonable excuse, then that is the offence the State has to prove. If the State does not prove that offence there is no case for the accused to answer.

That is technical.

If the State cannot prove, then there will be no case for the accused to answer.

There is an implied shifting of proof.

Do not let us start implying things. We are talking about what is written down here and we are talking about what Senator Lenihan and Senator Eoin Ryan want to take out from it. The Bill has made it clear and obvious to anyone who reads it that this is put in in ease of the defendant. I do not know why it should be, because if we take the situation which I am concerned with, the correct situation that anyhow the State must show mens rea before there can be a conviction—I do not want to be tied to exact definitions and I am certainly not an authority in this field, but broadly speaking I think we could take mens rea as meaning guilty intent, something done deliberately with guilty intent—if the State were to prove that, then it establishes mens rea and establishes the offence which is set out in the section. If the State does not prove that, it does not establish the offence, but either way, supposing the State establishes the facts and it is decided that on those facts there is a prima facie case, if these words are taken out the matter rests there, there is a prima facie case established. So long as these words are in, the defendant can at that stage advance his excuse and he is not called on to answer the case until he is going into the defence.

It seems to me that every way, whether you take Senator Lenihan's premises as being correct or take the position as a simple establishment of the prima facie case first by the State, all this is in ease of the accused. On Senator Lenihan's grounds the State has got to establish not merely that the act was done but that the act was done without reasonable excuse. If that is the offence, as he holds it is, if that is the onus, then the State has to discharge it. Supposing he is not right and the position is that the State has to establish a prima facie case that the act was done, that is, the person knowing or believing someone to be guilty of an offence does any act with intent to impede his apprehension and so on, the accused is then in the position under the Minister's wording of the section where he can say quite honestly and freely, “Yes that is so, I did this act, but the reason I did it was”, and then sets out his reason, it is up to the court then to say whether that was a reasonable excuse or not. If the court finds it was a reasonable excuse, then again we are in the situation where an offence has been committed but where a good defence has been provided and where the machinery for providing that good defence has been written into this Bill by the Minister notwithstanding the protestations of the Fianna Fáil Senators here.

I do not think Senator Ryan intended to flow from his amendment everything that Senator Lenihan saw in it. I think he was looking on this as a technical matter where there might be a shifting of the onus or the burden of proof. I do not think there is any shifting of it. The Minister has made that quite clear. Certainly if Senator Lenihan is right in his argument that the offence which has to be proved is the offence of doing an act without reasonable excuse, then to take out the words "without reasonable excuse" is certainly very much to be a disadvantage of the accused because it is relieving the State of a burden which Senator Lenihan, on second thoughts, would find that it would be very difficult for the State to surmount.

I doubt if the position can be as Senator O'Higgins suggested. It is that the prosecutor would have to prove that the person committed the act without reasonable excuse. He would have to say that he committed this act. The possible excuses are as follows——

I do not know if that is right. I was merely taking Senator Lenihan's definition.

I do not think it could be right. If it is not that the onus tends to shift. The insertion of these words is undesirable. In practically any offence, quite apart from this Bill altogether, the case could be made for saying that it should be an offence to do such and such a thing without reasonable excuse. For very good reasons the Legislature do not put it in. Take a typical example, the offence of assaulting somebody. It does not say "assaulting somebody without reasonable excuse". In many cases it will transpire that there was reasonable excuse in the sense that the accused person was attacked by the other person.

That is self-defence.

It is an undesirable introduction of a rather confusing concept to say that it is an offence if there is not any reasonable excuse. It would be much more preferable if the prosecution has to prove its case. The onus should be on the State. It must prove mens rea. In that situation the onus will not shift and the question of reasonable excuse will not arise because there must be mens rea apart from doing the act. For that reason it is an undesirable introduction into this section. It will cloud the issue of the State having to prove its case and prove mens rea. It will tend to shift the onus.

I do not want to introduce a note of acrimony into the debate but I cannot refrain from saying that I am appalled at the misconception of this section offered by the other side of the House. Senator Ryan has said that the State does not have to prove mens rea in this case. Senator Lenihan has suggested that the onus shifts. Let us look at subsection (4). It states:

Where a person...does without reasonable excuse any act with intent to impede his apprehension...

The offence means doing an act with intent to impede the apprehension or prosecution. The State has to prove that John Smith with intent to impede the apprehension of John Brown did some act and thereby is guilty of an offence. If the State proves that he did it with that intention the offence has been committed. If the words that the Opposition seek to have deleted were not there that would be the end of the case as far as John Smith was concerned. John Smith would go to jail or he would suffer whatever penalties were imposed.

Without any guilty intent?

The State would have to discharge the burden of proving intent. They would discharge it in the normal way. John Smith was well aware of the consequences of his act and he knew that if he shut the door in the policeman's face it would impede the apprehension of John Brown. Consequently, the State would prove mens rea and intent in the normal way. If the words sought to be deleted were deleted it would be no excuse for John Smith to say: “Well, he was nasty to me but he gave me £100 and I was the victim of the offence for which he is wanted, but he made it up to me. I have known him since childhood. We are good friends but, as there was a threat there, I was apprehensive that the organisation to which he belonged were threatening me”. He could not offer those excuses if the Opposition amendments were accepted.

He could, of course.

He could offer them in mitigation of the penalty to be imposed by the court but he could not offer them as a defence. That is the difference. Under the Bill as drafted, if he put forward what the court accepts as a reasonable excuse for doing something which he has been proved to have done with the intention of committing the offence, then this reasonable excuse not merely serves to mitigate the punishment but it serves to secure his total acquittal. This is a case that the section is making.

I am quite appalled that the Opposition should argue that an onus shifts. An onus does not shift. Senator Lenihan is under a complete misconception as to the difference between evidential proof and persuasive proof. All that is necessary in this case by the introduction of these words is for a defendant, perhaps in the course of cross-examination of prosecution witnesses, to put forward his question of a reasonable excuse. The State would have the positive burden of showing conclusively to the court that the excuse offered was not reasonable. The position is that in a case under this section—and may I repeat what Senator O'Higgins said?—the trial will be before our courts, before our judges, in accordance with our laws and in accordance with our practice and procedure. Senator Lenihan's suggested smear that in this case this section was endeavouring to bolster up an administration he described as "suspect" is completely reprehensible and inaccurate and misleading.

I was referring to the whole Bill.

We are debating a particular amendment.

We had enough smart talk from the Minister last week.

I did not interrupt the Senator when he was engaged in his smart talk. The offence to be created is to do any act with intent to impede the apprehension of another person or his prosecution. To secure a conviction, the prosecution must in the normal way show that the act was done and show that it was done with intent. If having done that, and these words were not in the section, the accused would be guilty, full stop. But because these words were in the section the accused can then say to the court: "I did it with a reasonable excuse". The onus then gets back to the prosecution. At that stage there is only an evidential burden on the accused. The prosecution has the persuasive burden of showing that the reasonable excuse offered could not be reasonable. Those words are in total ease of the accused. Senator Lenihan is either not listening to me or, as I suspect, he does not understand me.

The Minister has persuaded me that there may be something to be said for leaving these words in. If the Minister is right in saying that the words should be let stand, he is wrong in saying that it does not shift the onus of proof. The State proves that a person did a particular thing and then the onus shifts to the accused who is asked for a reasonable excuse. Having proved that he had a reasonable excuse, he is liable to be acquitted. At that stage the onus shifts.

Is it not in ease of the accused?

I will not press the amendment. I am suggesting to the Minister that the onus shifts and in that way we are possibly confusing an evidential and persuasive burden.

Amendment, by leave, withdrawn.
Business suspended at 5.40 p.m. and resumed at 7.30 p.m.

It is suggested that amendments Nos. 7, 9 and 10 are cognate and might be taken together.

I move amendment No. 7:

In subsection (4), line 20, to insert "lawful" before "apprehension".

The purpose of this amendment is to make it quite clear that this offence can be committed only if the apprehension is lawful apprehension. That may appear, on first sight, to be an unnecessary refinement but, having regard to the fact that we have so many paramilitary bodies in the State at present, and even more paramilitary bodies in Northern Ireland, it is essential that one should realise that there are quite a few organisations taking the law into their own hands who apprehend people, kidnap them, bundle them into cars and so on. It is essential that a distinction be drawn here, that the definition should be a very precise and accurate one, to make it quite clear that the offence would be committed only if the apprehension is quite clearly lawful apprehension by a recognised and lawful authority. For that reason, although on first sight it might not appear to be necessary, I think it should be put in. I cannot see any reason why the Minister would not agree to include it.

There are some reasons why I would have to resist the amendment. All three amendments have the same import. The purpose is to make it explicit that the offence of doing an act with intent to impede the apprehension of a person who has committed one of the main offences shall apply only to where the apprehension of the latter person was lawful. Senator Ryan agrees that it would seem clear from the reading of the statute, indeed the sense of the position and the legal position that the amendments are unnecessary because, of course it will not be an offence to impede an unlawful arrest. An unlawful arrest would amount to the offence of assault. A person impeding an unlawful arrest in effect, would be only preventing the commission of an offence of assault. Moreover, the offence of impeding would involve the absence of a reasonable excuse, which are the words we debated on the previous amendment, and there would be every excuse for impeding something which was unlawful. Therefore, the addition of the word "lawful" would add nothing to the section. It would be out of place in a legal way of speaking. As I have said it is not an offence to impede an unlawful arrest. Indeed there would be an actual obligation to resist because it would be an act of assault. I do not think it could ever be argued that what is involved there is an arrest or an apprehension that is anything other than lawful. I appreciate the spirit in which the amendment was offered but I would suggest to Senator Ryan that it is unnecessary.

I am not altogether clear as to the precise implication of this phrase used in subsection (4) and the various other subsections to which this amendment relates. It seems to me, from a fairly careful reading of section 4, there is nothing there which says that the apprehension, lawful or otherwise, is on foot of the offence referred to in line 1 of this subsection. Suppose I know that so-and-so has committed an offence under the Schedule to this Bill; I see him being arrested by the army, RUC or whoever. Now they might be arresting him for some totally different offence which was not scheduled in this Bill, and does not come under it at all, or they might be arresting him with a view to incarcerating him, shall we say, in Long Kesh, a circumstance which does not come under this Bill either. Under those circumstances one wonders about the legal position under this Bill. Does the Minister intend that the apprehension shall be in respect of an offence covered by this Bill? If he does intend that does he achieve it by the wording in this section?

I think it is clear. If I might read the section it becomes clear:

Where a person has committed an offence under subsection (1) or section 3 or attempted to commit any such offence, any other person who, in the State or in Northern Ireland, knowing or believing him to be guilty of the offence

and that can refer only to the scheduled offence——

——or attempt or of some other such offence or attempt, does without reasonable excuse any act with intent to impede his apprehension...

That can only refer back to an offence under subsection (1) or section 3.

Certainly the inclusion of the words "or of some other such offence or attempt", which, in itself, is highly questionable, confuses the issue very considerably. Assuming that somebody is very much in touch with the whole situation, knows what is the alleged offence, knows the whole situation and is not merely acting on the spur of the moment, he has to work out whether he is committing an act with intent to impede the apprehension of a person in respect of (a) the alleged offence or (b) some other such offence, or attempt, which makes it very vague and wide. Whether the apprehension, in those circumstances, is lawful, justified and appropriate is made very difficult by the inclusion of the words "or of some other such offence or attempt". On the one hand, the offence as such is very wide and on the other, the point with which I am even more concerned in the light of all the paramilitary bodies and so on that might attempt to arrest somebody or apprehend them, it is very important that it should be lawful apprehension. Of course, I appreciate what the Minister has said—that if it is not done in accordance with law then it is not lawful and there would be no offence. But is there anything wrong with including the word "lawful"? It seems to me that the Minister is blowing hot and cold. We were dealing with the words "without reasonable excuse" and he thought it was better to include this phrase even though it might not be necessary.

Well, in this case, the Minister was including "in the State or". He justified it in the end by saying that perhaps it is not really necessary but just to be on the safe side it would be as well to have it in. I went along with that on the basis that if there is any possible doubt, perhaps it is better to have it inserted.

I am suggesting to the Minister now that, in this very wide field—it is difficult and rather vague in relation to the actual offence and is also an area in which there could easily be a situation where somebody purports to have the right, the excuse and justification for the apprehension of somebody—it would be very necessary that it should be "lawful apprehension". Even if the Minister feels it is not really necessary, certainly nothing can be lost and no harm can be done by saying that it must be lawful apprehension. The Minister has argued, certainly in regard to the phrase "in the State or" on the basis of better play safe, better make sure that the meaning is clear. I am asking him to make sure in this case that the meaning is clear and that there can be no ambiguity by putting in "lawful apprehension". I can see no reason why "lawful" will, in any way, cause any difficulty or weaken the section.

Senator Ryan will, of course, remember that in relation to what I think was the first amendment moved here by Senator Yeats to delete subsection (2) of section 1, the argument seemed to boil down eventually to one that it was being urged that this was not really necessary and, therefore, could be deleted. As I understand it from Senator Ryan on the present amendment the argument now is that even though it may not be necessary it should be inserted. It seems to me the arguments are coming both ways depending on the particular amendment with which we are dealing.

May I give my view very briefly on this? I think the Minister was 100 per cent right in what he said in his first remarks on the amendment. Talking purely as an individual I feel that if it did not detract in any way from the Bill to put in the word "lawful" if it was not going to weaken the Bill in any way and if the Minister was satisfied that that was the situation, while I would regard the word as quite unnecessary and redundant in the context of what the Minister has already said, nevertheless, if there was a strong view that it should go in, even though the general feeling was that it was probably unnecessary, I would feel that probably it would not do any harm to the Bill or to the general tenor of discussions here to put it in.

I suppose I would have to concede that it would not do any harm to the Bill but we would want better reasons than that for introducing an extra word into a Bill. We would have to be satisfied that it would do positive good. I do not think any argument has been adduced to show that it will do positive good, that it is in any way essential to the Bill or that it would prevent an injustice being done on foot of the Bill because of its omission.

The impeder, who is the person sought to be caught by this section, will be impeding only in relation to a scheduled offence. He must know, or believe—this mens rea comes in again— that the person whose apprehension or prosecution he is impeding has been guilty of the offence or an attempt at it. Therefore, the State would have a fairly severe onus of proof to discharge before the offence of impeding would arise. Then, as was shown during the debate on the last amendment, having crossed that hurdle, the impeder has the defence of showing that he had a reasonable excuse for doing what he did. Looking at the section as it stands, if we were to introduce the word “lawful” the reading would then be “with intent to impede his lawful apprehension or prosecution”. Would the word “lawful” then appertain to both the words “apprehension” and “prosecution” and would it have any effect on prosecution? It would, if you like, highlight the unnecessary nature of the adjective were it to qualify “prosecution” because it is inconceivable that a prosecution could be anything but lawful at any time. “Prosecution” imports that the machinery of the State has got under way, that the judicial proceedings have commenced. To suggest that they could be anything but “lawful” by introducing the adjective “lawful” would somehow not seem proper to me. I would be somewhat worried about that.

Another point that arises from the question of keeping this Bill on all-fours with the legislation in the other jurisdiction, arising out of an earlier amendment of Senator Ryan where he sought to introduce the words "law of Northern Ireland" is that the law of Northern Ireland, which has this offence, has the same words "with intent to impede his apprehension or prosecution". If we were to introduce the word "lawful" we would be differing on a drafting point though not in substance, because I do not think the word adds or takes anything from the section. However, in view of that, that it will not seriously alter the meaning of the section, might I ask the Senator to leave the point to me and I will consider it before Report Stage? Were it not for the rather incongruous situation of qualifying the word "prosecution" I would be disposed to accept it at this stage. But if we can devise a drafting formula that will relate it to "apprehension" only and leave "prosecution" stand, I think we will be able to meet the Senator.

Surely, the Minister could solve that problem very easily by adding the word "his" before the word "prosecution" so that it would read "with intent to impede his lawful apprehension or prosecution in the State"? I would have thought that would prevent the word "lawful" applying to "prosecution".

With regard to the Minister's point about making changes in the Bill which would make it different in certain respects from the British Bill, I would have thought that the simplest and much the most satisfactory way to look at this would be to reconcile himself to the proposition that he might have to go to the British officials and say: Look here, my Parliament insisted on making these changes so you will have to make the same, too bad and all that. I think that is the only way we can look at this Bill—that if either House should want to make changes, the Minister can simply go and say: "Well it was not I who did it; I was asked to".

It is good that the Minister will look at this. The only brief point that I would make is, on the question of the apprehension, shall we say, being unlawful. Take this possibility under subsection (3) of the Minister's section 19: a guard, for example, can arrest without warrant if with reasonable cause, he suspects that an offence has been committed and he can then arrest anyone whom he with reasonable cause, suspects was guilty of the offence. Supposing I am walking down the road with somebody who is suspected by the guards of having committed the offence, whom indeed may have committed it. I thereupon hit the guard, enabling my friend to escape. I am then had up for attempting to impede his apprehension. I am able to prove in court that the guard did not in fact have reasonable cause for suspicion. It seems to me, under these circumstances, I should be prosecuted, certainly, for assault but that I ought not be prosecuted for impeding the apprehension of a person under this——

I do not think that the Senator could be because the State would have to allege that you knew that your companion had committed an offence under subsection (1) of section 3.

Of course, I did. I knew he had done it. I was well aware of the fact he had done it. But the guard was not entitled, under the Minister's section 19 to arrest him, because he himself did not have reasonable suspicion. He knew he was a member of shall we say, the IRA, and he thought: Let us pull him in, may be he did it. But it transpires in court that he did not have reasonable cause for suspicion. Under those circumstances, it seems to me I ought not be prosecuted, under this Bill. Of course, I could be had up for assault. That is a case where the word "lawful" would prevent me being accused under section 2 and I think I ought not to be summoned under section 2. But, without the word "lawful", I could be, because there is nothing that says that the arrest must be in conformity with section 19 of this Bill.

No, any arrest that a guard would make under section 19 would depend on the subjective knowledge of the guard. You, as the companion of the person whom the guard wishes to arrest, cannot know the subjective knowledge of the guard. But as a law-abiding citizen, in spite of your companionship, you would be expected to assume that the guard would be doing his duty. If you were to let your friendship exceed your civic duty to the extent of clapping the guard with a brick what would happen would be deserved and whether the word "lawful" were in position in the section would not change your situation one iota. In the example you have sketched the presence of the word "lawful" would not save you from the consequences of your action.

I would be sorry to hear it, not that I expect to see myself hitting guards with bricks. Nonetheless, I should have thought that, even under the Minister's section 19, which heaven knows gives very extensive powers not only to the guards but to everybody else also for arrest without warrant, there should be such a thing as unlawful arrest, that is arrest where the reasonable suspicion and so on provided in section 19 does not exist, which makes the arrest unlawful. It seems to me very unfair that anyone, however undeserving, should be prosecuted for resisting an arrest which is unlawful.

If the arrest is unlawful, no offence would be committed. If, in the example the Senator quoted, it should turn out that the arrest, or attempted arrest, was unlawful and he impeded it, he would not have committed any offence under the Bill as it stands. He could not be liable for impeding something that was unlawful because, technically, what the guard purported to do was commit an assault on the person he sought to arrest and it would be no offence to prevent an assault, the amount of force would have to be adequate to the situation in question. That would be the only legal requirement on the companion or on the impeder so to speak. But, if the arrest were unlawful ab initio, there could be no offence of impeding.

Might I add, on section 19 — to correct something the Senator said — these powers are not new; these powers of arrest without warrant are in our laws at present? We will come to that section later.

I accept the Minister's apprehension in regard to the effect of my amendment on prosecutions. I am quite satisfied to accept his offer to look at this and see whether he could put in "lawful".

Amendment, by leave, withdrawn.
Amendments Nos. 8 to 10, inclusive, not moved.
Question proposed: "That section 2 stand part of the Bill."

There are a lot of things one might say on section 2. First of all, I should like to put a point to the Minister. In replying on Second Reading of this Bill last week the Minister had some things to say about the Special Criminal Court. It had been complained by Senator Robinson and various others, including myself, that one of the effects of this Bill is that the offences under this section would be tried by the Special Criminal Court, that the effect of this would be to make the Special Criminal Court permanent, as Senator Mary Robinson said "to institutionalise" the court. It was rather an unfortunate misuse of the English language, but one can see what she means.

The Minister, at column 392 of the Official Report for Tuesday, 3rd June, 1975, waxed eloquent on this point and said of course this was not so at all. He said it was not the intention of the Bill to institutionalise the Special Criminal Court, and went on:

The special criminal court will only continue so long as the proclamation keeping it in being continues, that is, so long as the Government are satisfied that the state of affairs in this and adjoining territories is such that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.

When we reach the time for its disestablishment then these offences under sections 2 and 3 can be tried in any court of the land. They can be tried in any court of the land at present but, admittedly, because of the situation which exists, because they would be jury courts, it might not be possible to use the ordinary courts because of the difficulty of bringing witnesses south. Accordingly, the procedure for commission which is envisaged will have to be used.

In other words, the point the Minister is making is that, while of course the taking of evidence across the Border, either way, on commission would have to be done by a court without a jury, other things being equal it is perfectly possible to use the ordinary courts of the land provided only that the witnesses will travel across the Border.

I would put it to the Minister that while this statement of his may be correct in theory in practice it simply is not so. Supposing you had a situation, either now or sometime in the future, that all the witnesses — army, police, everybody else—would cross the Border and come down to Dublin, or wherever the trial was being held. Let us say it was being held in the Central Criminal Court and I am being charged. All I need to do, at any moment to end the whole trial, would be to say: I have a witness in County Tyrone whom I need in my defence and that witness says: "I am not going to travel across the Border". You then have to settle into the process of commission, the court cannot do it and that is the end of trial. In other words, the answer is that the Attorney-General will have to ensure that these trials are held in the Special Criminal Court. Otherwise, any defendant has only got to conjure up a witness across the Border who refuses to travel and the whole process is ended and the trial vitiated. In practice, the only form of court that can be used in prosecuting the offences under this Bill would appear to be the Special Criminal Court. I would be glad to have the Minister's views on this before we go any further on this section.

That is a theoretical possibility. Indeed, the position could be that, in the criminal trial before the Central Criminal Court, even now, the defendant might say: "I have an essential witness who is in England whom I cannot persuade to travel to Dublin to give evidence in Green Street". My understanding of such a position is that it is for the defence to produce its own witnesses. Granted the object of the court is to try the case so that justice is done; it is not a question of interfering on behalf of either party, but to ensure that all relevant evidence comes before the court. In such a situation, the judge, being a man of common sense and not living in some theoretical world, would have to hear from the defence who this witness was and what evidence he was going to give. The judge would have to be satisfied that the evidence would be relevant to the defence. If the courts decided that such evidence was relevant to the defence and the defendant could not produce the evidence, the court would possibly arrange a commission in the area where the witness resided and from whence he refused to come. In a jury trial, the commission would have to be taken in the absence of a jury.

Again, this is not unusual. In civil cases evidence taken on commission for jury actions takes place from time to time. Granted the jury do not have the benefit of seeing that particular witness's demeanour and hearing how he answers questions, and to that extent the evidence is less valuable, but that is not to say that the evidence need be excluded or ruled out completely. It would become clear to the court very quickly if it was only a ploy to try to vitiate proceedings or whether there was a genuine need for the unwilling witness.

I cannot say what precisely a court would do. I am advised that in criminal cases the commission procedure might not lie where there is a jury trial and I should like to check this point. It certainly would be available in civil cases where there is a jury. On the other hand, a statute could provide that evidence in a criminal case could be written evidence. This was laid down by Chief Justice Ó Dálaigh in the Haughey case. At present our criminal courts require oral evidence but there is nothing to prevent a statute requiring otherwise. If a defendant were to seek to impede the course of justice by conjuring up an unwilling witness, the court would have to be well satisfied that that witness was material and that his evidence would be relevant.

It is a theoretical possibility. The only way to remove it as such is to have all criminal trials before a judge without a jury. That is something I should not like to see. I should like to see a situation where the special court could be disestablished. If the special court were disestablished, the situation would be such that it would be inconceiveable that any witness would not want to travel to give evidence in ease of his friend, the defendant.

Again, if it were a case that the witness was not a friend of the defendant, the defence could ask the prosecution to adduce this evidence. Again, if it were material evidence and the prosecution were unable to do so, the court might have to direct an acquittal for lack of material evidence. That is one of the difficulties in our system of trial by jury, but it is one with which we gladly put up in order to maintain that system. It is possible, even at present, that a witness will fail to come from the other jurisdiction for what I might call an ordinary criminal trial in the Central Criminal Court.

There is really no comparison. If a charge is brought against someone on foot of an offence committed, or alleged to be committed, in the Republic, then there may be cases when somebody would say "There is a witness who will say I was in a pub 20 miles away on the same night the offence took place and he is now in Birmingham". Under these circumstances the court has to decide whether it is simply a ploy to escape justice or if there is a genuine problem involved. We must bear in mind that this is a different set of circumstances entirely. Under this Bill, people are being tried here for an offence which has been committed in Northern Ireland. Therefore any defence witnesses who may exist will be in Northern Ireland and will have to travel. It is not a theoretical point at all.

The point I am making is this. The Attorney General, in directing where this trial is to be held, must surely bear in mind that if there is even one defence witness—it is likely there will be one or even more to appear for the defence—who refuses to travel that that is the end of the trial unless it is held before the Special Criminal Court.

Not necessarily.

The Minister says it might be possible to take evidence on commission in a criminal case. I do not see that it is. If a new statute is introduced, that is another day's work. But we are talking about this legislation. As I understand it, it would not be possible at present to take evidence on commission in a criminal case. As for the idea of taking defence evidence in the absence of a jury, I can think of no more cast-iron way of winning an appeal than to be able to say that somebody was convicted by a jury which had not heard part of the evidence for the defence. I would have thought that would be the end of the trial completely.

I corrected myself there. If I gave the impression that you could have a commission on a criminal trial where it was being held by jury that would be wrong. That is not possible.

That is what I thought. The difficulties are immense. If we once try to have a trial under this Bill before a jury, the problems for the prosecution mount up, because if the defence wants to—and I presume it would want to— vitiate the trial, all it has to do is to have a few defence witnesses who will not travel.

I raise this point because, contrary to what the Minister has suggested on his Second Reading closing speech, it is quite clear that for practical purposes, the only trials held under this Bill must be in the Special Criminal Court. There is no other way of doing it. I cannot see any Attorney General running the risk of having people escape their lawful desserts by having them tried anywhere else.

On section 2, I should like to state a few of my strong reservations. I have already gone on record as saying that I understand and accept without question the total sincerity of the Minister and of the Government in bringing forward this legislation. My objection is to its content and implications for the people of Ireland, particularly in the difficult time which lies ahead. The present time is so full of uncertainty, menace and threat, particularly for the most vulnerable of our people—the minority in Northern Ireland — and the air is so alive with gunpowder, that I feel this Bill is untimely. At some other time I might have been willing to accept it.

I will very briefly state my strong reservations. Section 2 boils down to this. It raises this problem for me. As an Irishman, I recognise that acts committed in this State are crimes, because of the legitimacy of the State. If this section would de facto acknowledge the legitimacy of Northern Ireland, no matter what regime was operating there — and we have a choice of six or seven unacceptable regimes waiting round the corner — it seems that the section de facto acknowledges in advance the legitimacy of any regime that might come into being there. At the same time it seems to remove the defence of political motive from anybody who might find himself oppressed, threatened or menaced by such a regime. It makes the courts of our State agencies for whatever Northern Ireland regime might come into power. It makes our legitimate State de facto agencies for them in suppressing political protest.

Is that what we as a people want at this moment? Do we want, finally, to terminate all political protest, opposition, and challenge to whatever regime may obtain in Northern Ireland, even a repressive regime that might result from that overwhelming majority of Craig, Paisley and West and their present unholy overtures of alliance with all the paramilitary movements in the North? I deliberately use the word "political". The Minister will probably protest very strongly that he is not ruling out political protest. It seems with certain kinds of regimes, repressions and retaliations against legitimate peaceful protests that violent retaliation on the part of those who do protest becomes almost an inevitability, as it certainly became an inevitability in August, 1969.

Therefore my objection to this section is political and even pragmatic. In a non-sick society this kind of legislation would not be needed anyway. The situation for which this legislation was framed in the first place has become even worse. I used the phrase, when I was speaking on the Second Reading of the Bill, "that it is too much in the nature of a blank cheque for my comfort". Handing this over is really making hostages of the most vulnerable people the Bill will affect. It will not affect the UDA, the UVF or the paramilitary men of violence on the majority side in the North. It will affect only one group, this is, the minority and those who engage in protest there. I do not want to be quoted as saying that the violent and savage actions of repressive forces on the side of the minority in Northern Ireland are something that anyone can condone.

That is why the Bill was introduced.

I applaud the Government in trying to put that down. On the other hand, that kind of violence was begotten by violence of another kind. It is that other kind which seems at this moment most menacing and quite terrifying. This does not seem to be the moment in our history when we make our courts the agencies, in advance, for whatever kind of repressive regime might come into being in the North. The Minister is probably better informed than I on this, but the strength of the paramilitary Unionist forces in the North is immense. It is devastating. They have been making threats recently in Northern Ireland and I have heard it said aloud and sotto voce. That enormous movement, which has never really been satisfactorily disowned by the politicians in the North, is poised.

It is to the credit of the Southern Government that they have frequently disowned both branches of the IRA and all the violence done in their name. It is in vain that one searches the headlines of the Northern papers for any substantial sign that the Paisleys, the Craigs and the Wests equally disown or equally abhor the very menacing violence that has been building up in their names. On the contrary, my impression is that they are on the very brink of making formal and already implicit alliance with these forces. That is the basic reason I tend to oppose this section. While strenuously affirming my belief in the extremely high ideals and intentions of those who have framed it, we appear to be coming very close to a time when the Government in the South will have to declare unequivocally that, if there was a sudden change of situation in the North, if the moment did arise when these forces moved in, in pogrom terms, against the minority, we would feel in honour bound to go in to defend them. We have been reproached by one of the most brilliant English politicians, Leo Abse — he is not a man whose every word I hang on— who has attacked us of late for refusing to take responsibility for our posture. The Observer, a fortnight ago, equally made it clear that it was quite inevitable that the South would have to go to the aid of the minority should such a situation as the withdrawal of the British Army or the massive upsurge of Unionist violence take place.

The Senator is now going beyond what is appropriate to a discussion of the section.

I went wide of my brief and I promise not to repeat the irrelevancy. Had I come to my next sentence, perhaps the relevancy of what I was saying would be supportable. Section 2 (3) reads:

Where a person—

(a) in the State or in Northern Ireland, attempts, conspires or incites another person to commit an offence under subsection (1) or section 3, or

(b) in Northern Ireland, attempts, conspires or incites another person to commit an offence specified in the Schedule,

I would argue that Articles 2 and 3 of our Constitution are implicity an incitement to an offence of this kind. Their claims of territorial sovereignty, no matter how we disclaim them, in the small print or in our statements, can be construed as an incitement of that kind. It worries me because we are enacting a double standard when we are saying this.

I would also argue that our whole anti-Partition rhetoric has been used by both sides of the House. Articles 2 and 3 of the Constitution, can be read as an incitement. I am not a lawyer and it has disappointed me a little that on the Second Reading of the Bill very few lawyers tackled this problem. Subsection; (6) of this section reads:

Where a person has committed an offence specified in the Schedule or attempted to commit any such offence, any other person who, in Northern Ireland, knowing or believing him to be guilty of the offence or attempt or of some other such offence or attempt, does without reasonable excuse any act with intent to impede his apprehension or prosecution in the State or in Northern Ireland shall be guilty of an offence.

I criticise that for its increasingly frightening and repressive level of abstraction. This is a very vulnerable section in terms of practical law and legislation. Its interpretation could keep in employment an army of lawyers. It does not hit the target and the shot is spread very wide indeed. It is likely to hit practically everything within the area rather than the actual object at which it is aimed.

Finally at the end of subsection (5),

... the accused may be found guilty of any offence under subsection (4) of which it is proved that he is guilty in relation to the offence charged (or that other offence).

The uncertainty of the charge throughout subsection (5) is worrying.

These are an amateur's comments on the Bill. That aspect of small print has been dealt with fairly well by many of the amendments, though I do not think it has been totally dealt with to make it a satisfactory section. Perhaps, it might be regarded as a satisfactory section at another time in our history. At this moment in our history, with 100,000 guns in the hands of Loyalists in the North, and no effort whatever made to disarm them or to revoke the licences, with the blatant and brazen build-up of majority forces in the North of Ireland, with the open connivance of the Northern Unionist politicians, with this build up of force, with the increasing sense of threat and menace felt by the minority in the North of Ireland and with the extremely precarious situation where an alliance could very easily be formed between the extreme military forces in the North of Ireland and the extreme Unionists, in this highly loaded and menacing situation it would be an act of considerable political folly to enact section 2.

Senator Martin has made a very important contribution to this Bill and a very terrible one. He has talked about this State becoming agents for some yet to be identified political forces of a disgraceful character in Northern Ireland and that this is to be one of the effects of the justifications for this section. He has talked about political protests which take the form of murder, manslaughter, arson, kidnapping, false imprisonment, setting fire to churches, wounding with intent to cause grievous bodily harm, robbery, aggravated burglary and the rest.

I did reject all that.

He combined the two in a manner to which I am entitled to react as being terrible in its effect, coming from an important University Senator. Protest, as Senator Martin may be interested to know, has been recently described by a liberal South African poet as "the collective megalomania of little men in this century". We are not dealing with little men in this Bill. We are dealing with very violent, terrible men who have committed terrible crimes. We are trying in this section to cope and deal with them.

As I understand the position, Senator Martin said now is not the time to do anything about murder, manslaughter, kidnapping, arson and the rest. Now is the time to do what should have been done long ago, and now we are doing it. They may put any cloak, cover or clothes on them. They may even engage in the sophistry of saying that, because there is another violent group there who are not being led by civilized men, we, the civilized people in this State, should abstain from doing what we ought to do. Because there are Craigs, Paisleys and Wests who are giving bad leadership to their people and failing to do what they ought to do, does that mean that we should fail to do it? Most certainly not, irrespective of how anybody likes it.

Senator Martin talks about Articles 2 and 3 of the Constitution, and he may have a point. It may well be that the language in this document in some of its particulars, as the language in many other documents that have emanated from public men over the last 50 years, represents an incitement. I recognise their position as being unhappy and unfortunate. They are in the darkness of various types of delusion. That is not objectively a reason for the State to take the steps it ought to take and to exercise the powers which the signatories to the Proclamation of 1916 implied when they used that language about the rights of the people of Ireland to make the decisions that were there being made, who talked about the miserable cowardice, inhumanity and rapine they hoped would not disgrace the swords and the arms of the people who took action at that time, and who implied that discipline would be exercised against them, as discipline is now being exercised against them.

As I said on the Second Reading of this Bill, the Leaders of the Fianna Fáil Party, as well as the leaders of the two parties on this side of the House, have exercised disciplines in the past. This is but one of the disciplines. This is an act of sovereignty. This is the proclamation of our independence, a proclamation of our freedom. The implication of 1916 is involved in this Bill. We are taking all the steps to show our full manhood and we are not giving a damn about people saying that these are making political protests, political protests with knee-capping, political protests with robbery and aggravated burglary. No, it was important for the purposes of clarification that Senator Martin made his contribution, but unfortunate. It means that we can speak out and get some of these things out of our system.

Assume, for a moment, as Senator Martin said, that Article 3 of the Constitution is an incitement. I am not saying it is an incitement. Senator Martin said it is. Do we leave an incitement or do anything about it? If he is right, do we change it; or is the position that we are paralysed in our legislation here because of language used in the Constitution enacted nearly 40 years? We should not be so paralysed. I certainly recommend the Seanad to support this section.

I want to protest against all parts of the Bill and in particular section 2. The first thing we have to ask ourselves is: why is this necessary? Surely the need for all this cannot be laid at the feet of the Irish people. This is necessary fundamentally because we have foreign troops on our soil. That is the reason such legislation has to be introduced here.

Since 1916 and for 700 years before that, Irish men and women in every generation have been trying unsuccessfully to get rid of the invaders who landed here in 1169. These were sensible and knowledgeable men who recognised nationhood and who had respect for themselves and their families and who felt that we were and should be a sovereign State. Men have fought and bled and died for this down through the generations.

In 1918 on two occasions we asserted by a majority vote that we were a sovereign State in democratic elections. Our country was partitioned after the Treaty. We will not go into that sad history. Secret agreements were made and things were done. Republics were declared for part of the country at big dinners in Canada. These decisions and pronouncements were made and they aggravated many people here. We always had set our sights on independence. This section, like many other sections in the Bill, is trying to take from our sovereignty. We are being asked by the Coalition Government to act in collusion with the British Government, who are ruling six of our counties against the will of our people. They have thousands of troops stationed there. Those troops have a poor record in so far as their performance in the Six Counties is concerned. It is true to say that the sun never sets on British villainy. People have been accused of being emotional in making statements such as that. These are salient facts which must be recognised. We do not have to apologise to anybody for having an independent attitude so far as our sovereignty is concerned.

The Government would be much better employed if they were to examine some of the problems that beset them as a Government instead of having us debating a Bill such as this. There are over 103,000 unemployed and a disastrous economic situation exists. By bogging us down on section 2 of the Bill they are trying to drag a red herring across the real position.

Whatever the Senator thinks about whether section 2 should or should not be discussed by the Seanad it is being discussed by the Seanad and he should keep to it.

I appreciate the Cathaoirleach's ruling, and he has been very fair to me on all occasions. This Bill appears to me to be the tail end of what at one time was known as Sunningdale. Sunningdale had built into it the idea of an all-Ireland court. It envisaged an all-Ireland body to which the Government and those responsible for the Six Counties would have access. Sunningdale is now a shambles and is long gone. The idea of this co-operation and collusion with the British Government in the North should have died with Sunningdale. It is wrong for any Irish Government to try to enact this Bill especially in view of the situation in the Six Counties at present.

I was accused by somebody for referring to the Six Counties. I wish to state emphatically that I make no apology to anybody for calling that territory the Six Counties. We have 32 counties. I am an Ulsterman and I have a decided objection to anybody referring to six of our counties as Ulster. We were playing last Sunday in the Ulster championship and we won that match. We are in the province of Ulster and we do not wish to be excluded. It is enough to have Ireland partitioned. We do not want our province partitioned in that way by politicians.

Many politicians refer to the "South". Incidentally I have never referred to it as the "South" because, as Senator McGlinchey and many others can confirm, they are living in the most northerly part of Ireland.

Senator FitzGerald referred to the wisdom or logic of some South African poet regarding protests. Was he referring to something that happened in Rhodesia? There is an example there of further British justice and what can happen when this great mother of democracy moves in among native people and takes over.

I am emphatically against the section. I do not like to see our Garda and the Army being placed in such an awkward position where they will have to stand shoulder to shoulder with British soldiers who will come down across the Border as witnesses. In their own courts they were hooded and unidentifiable. They have an ignominious record so far as their escapades in the Six Counties over the past number of years are concerned.

The case was mentioned here before of the British Army soldier who was supposed to be under discipline who shot a farmer's son in cold blood in front of his father. When this case was brought before Judge McDermott we know the decision that was taken. How can we be expected to have any faith in a jurisdiction such as that? Why should we rub shoulders with people of that character? Certainly I, for one, would not dream of doing it.

Our Garda and our Army are doing an excellent job. I am not in favour of unlawful organisations. I have the utmost respect for our Garda and our Army who are in complete control. I want them to continue to enjoy the respect in which they have been held by the people down through the years. They have a difficult task along that unnatural boundary. I am fearful of their being pushed into a position where they would be despised and looked down on by our citizens as a result of the provisions of this Bill.

Some of these remarks would be relevant to a later section.

I would not like to see an attempt being made to put our Garda and Army into that invidious position. Fianna Fáil have always upheld the authority of the State. After the last election we walked in a manly way over to the other side of the Dáil and Seanad and took our places in a democratic fashion. We handed over the ship of State in good financial trim. On three occasions we have seen what has happened. I want to nail this myth which has been bandied about here that, because we are opposing this Bill, we are on the side of people who commit murder.

We have always done our best. We were often opposed very vehemently by the then Opposition when we tried to ensure that law and order were maintained. When I was a small boy an attempt was made by the people on the other side of the House to ensure that it would not happen when our people democratically returned us to Government in 1932. An organisation was founded here to prevent that happening. Thank God we had nothing to do with it.

We should look at this section, which is the key section in the Bill, in a very practical way. I have a commonsense view in regard to laws. I do not believe there is any point in the Legislature passing laws unless it can be reasonably proved to the legislators that they will be effective and enforceable. Apart from the obvious waste of parliamentary time involved in passing legislation of that kind—this waste of time is patently obvious; we have a blatant example of it in the present Bill —and the waste of energy and money in the sense of time spent by the Administration in the preparation of such legislation, there is an even more important aspect, which is the discredit and disrepute brought on the Legislature, the Army, the police, the whole State itself, and the nation at large, in introducing and battling through a divisive debate and finally securing the passage of legislation which is simply inoperable, unworkable and the timing of which can be proved so obviously and totally wrong. It is on that basis I want to lay my opposition to this Bill, and in particular to the principle of the Bill.

The principle of the Bill has already been agreed on Second Stage. We are now debating section 2.

Without getting into a debate about where the principle is enshrined I will quote from the Minister's own memorandum on section 2. I will quote section 2 paragraph 4 from the first page of the Minister's memorandum.

This section is the principal provision of the Bill. Its chief function is to provide that an act done in Northern Ireland that, if done in the State, would constitute one of the offences specified in the Schedule shall be an offence against the law of the State and punishable as if done in the State. This result is achieved by subsection (1).

The Chair is not disagreeing with what the Senator said when he referred to section 2 as the heart of the Bill. The Chair does not object to a thorough discussion of the principle of section 2. What the Chair cannot allow is a general discussion which would be equivalent to a Second Stage debate held on Committee Stage.

What I am discussing is the basic heart of the Bill which is enshrined in section 2. We will not argue about it because we could get into semantics. In my view the whole principle of the Bill is enshrined in section 2 and in particular in subsection (1) of section 2. The rest of the sections of this Bill are appendages which hang on to the fundamental principle to seek to ensure that this basic principle of extra-territoriality in regard to offences done in the North of Ireland can be made effective and enforced in this jurisdiction. I cannot agree with any principle—this is why I started in that particular vein—that is nugatory and counter-productive in regard to its effectiveness and enforcement particularly——

When did the Senator form that view?

It can be counterproductive because anything nugatory in criminal law can be counter-productive by bringing the whole law into disrepute and in particular bringing the criminal law into disrepute. It is the basic principles of the common law as enshrined in the criminal code and as enshrined in the criminal code of many other civilised countries that I am concerned about preserving in this particular Bill. If it can be argued and shown to me that a specific principle can be made effective, then I would seriously consider the principle. It is sought in this Bill to enshrine the principle set out in section 2 subsection (1) and add trappings alleging that this principle can be enforced when, in fact, it cannot be enforced or cannot be made effective, and furthermore will tend to bring the whole law of this land into disrepute and discredit.

I am not arguing in vacuo here because I am quoting from the learned gentlemen who are members of the Law Enforcement Commission who made their report in which they finally came down in favour of the method enshrined in section 2, subsection (1), on the basis that it was the only option open to them. An all-Ireland court method which they regarded as the ideal method was not on because of the urgency of the problem in view of the mounting anticipation arising out of the other Sunningdale clauses. They say quite clearly in their report that they rushed into this extra-territorial recommendation on the basis that it was the quickest thing they could get out to fit in with the growing anticipation at the time that the Sunningdale provisions of December, 1973, would be functioning and that this extra-territorial method about which they had grave doubts would be the method they could bring in quickest.

Again the Chair is becoming perturbed by the line of argument. The Senator is now discussing the alternative method by which a problem might have been dealt with other than the method which is in the Bill and which was accepted by the House on Second Reading. The Senator is perfectly entitled to discuss section 2 as it stands. The arguments the Senator has just been making seem to the Chair to be essentially arguments of a Second Stage type which are not appropriate on Committee Stage even on a section as wide and as fundamental to the Bill as section 2 is.

I will proceed again to read section 2 (1).

Where a person does in Northern Ireland an act that, if done in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence...

This is, in effect, the principle of extra-territorial juridiction to which the learned gentlemen on the Law Enforcement Commission reported on page 18, paragraph 20. They stated that the taking of extra-territorial juridiction covering a wide range of offences is unprecedented in common law countries.

"——although not prohibited in international law." The Senator must finish the sentence.

It is quite obvious that the principle of extra-territorial juridiction is not prohibited in international law. We passed a measure last week dealing with a very minor matter. It is only in matters of that kind that we have gone into the question of extra-territorial jurisdiction. We passed the Court of Justice of the European Communities (Perjury) Bill. I am aware that it is not prohibited in international law. It is unique or unprecedented, to quote the learned gentlemen's words, to have the taking of extra-territorial jurisdiction covering a wide range of offences. What is involved here is a wide range of basic offences in criminal law. It is now sought to apply the extra-territorial idea to these offences. These offences, of course, are set out in the Schedule.

I will quote another point which the learned gentlemen in the Law Commission Report also made on the same page, following paragraph 21:

In the present conditions we have to face the fact that many persons would be reluctant, and some might indeed refuse, to cross the Border to give evidence, however essential their evidence and however clearly they themselves appreciated its importance. We have, after careful consideration, rejected as unacceptable that witnesses should be legally compelled to cross the Border to give evidence.

The learned gentlemen, with great reluctance, and acknowledging the fact that it was unique and unprecedented—

Do not use the word "unique". I suggest that the Senator should read the last sentence of paragraph 20.

It refers to what I am talking about.

Read it to the House.

Of course I will. "There are precedents for the assumption of extra-territorial jurisdiction in criminal law in both the Republic of Ireland and Northern Ireland." I have said this already. I quoted the Perjury Bill which we passed last week. The same applies to the Foyle Fisheries Act, the Offences Against the Person Act, the Air Navigation and Transport Act——

The Extradition Act, 1965. Does the Senator remember that?

I do. What I am pointing out is that I do not regard it as in any way creating a precedent to bring in this Bill. What I am saying is that covering the wide range of offences, to quote again the learned gentlemen's view, it is unprecedented in common law countries to introduce the principle of extra-territorial jurisdiction covering a wide range of offences. The legislation refers to a particular offence under a particular piece of legislation. There is no comparison in regard to degree, importance, or any other criteria, that one might apply. There is no similarity in importance between the particular act or offence in each of these legislative measures and the embracing nature of the measures covered in this Bill flowing from the principle in section 2 (1). The Minister is well aware of that. There is no point in elaborating it further.

Can I take it that the Senator is against the principle of extra-territoriality?

I spoke last week on the Perjury Bill in regard to the European Community. I said that the principle of extra-territoriality was involved there and one would have to agree to it. Every civilised nation has some degree of extra-territoriality written into some measures. What I am saying is that, in no such measure is there anything like the wide-scale and widespread intrusion into the whole system and administration of the criminal law as there is involved in this particular extra-territorial principle written into this legislation.

It comes back to the fundamental aspect that you bring a matter like extra-territoriality into a Bill or a legal measure when you are dealing with a specific offence in which there is a degree of reciprocity and acceptance by both or all parties to the extra-territorial arrangement. In other words, when there are security forces, army forces and judicial forces operating in regard to the particular offence concerned that are acceptable to each of the parties to the extra-territorial convention——

Was the Senator not in favour of it unilaterally at one stage?

An Leas-Chathaoirleach

The Senator to continue without interruption.

On the question of extra-territorial jurisdiction it is completely applicable. For example, the Foyle Fisheries Act is referred to by the learned gentlemen in the recent report. Of course, there is a mutual interest in ensuring that the Foyle fisheries on both sides of the Border are administered properly, that poachers are secured, that salmon stocks are preserved and that, in general, there is a fisheries administration on both sides of the River Foyle adequate and acceptable for the protection of fisheries to the mutual interest and benefit of people on both sides of the Border. That is a totally acceptable situation. The Minister cannot draw any comparison between the extra-territoriality involved in the administration of the Foyle fisheries jointly by the two jurisdictions under the Foyle Fisheries Act and the situation of major, serious and fundamental offences under the criminal law in which the life and liberty of a person found guilty are at stake and where there is not an acceptability or a mutual involvement on the part of the security forces on each side of the Border.

I am only continuing Government thinking since 1965.

There is certainly no comparison between the Extradition Act, 1965, signed by a number of civilised countries respecting the other's legal system and providing that for criminal offences for which there is no political content there can be an exchange of offenders backed by a warrant to the courts of the country where the offences were committed. There is no question of extra-territoriality involved there. What is involved is the backing of warrants issued by another jurisdiction for the apprehension of an offender and that offender in this country has every right to go before the courts here and secure his independence. One of the aspects clearly recognised by all the countries who agreed to that convention was that, in the case of a political offence, courts here would not extradite an offender, a principle recognised by a number of civilised states.

What I am trying to get through to the Minister and to the House, and it is so obvious, is that there is no point in talking about the extradition legislation. There is no comparison. There is no point in talking about the Foyle Fisheries Act in which there is an extra-territorial jurisdiction in respect of salmon poachers. There is no question of comparing that type of situation with what is involved here. What is involved here is the holus-bolus transfer of offenders down here into the jurisdiction of another area in which jurisdiction we have no confidence in the security forces or the police forces——

On a point of order, that is a complete misstatement of the purpose of the Bill. There is no question of the handing over of any people to another jurisdiction. The whole point of the Bill is that we are taking power here to try, within our jurisdiction, people who come here from another jurisdiction.

On a further point of order, is it in order for the Minister to rise on a point of order?

An Leas-Chathaoirleach

It is in order for the Minister to rise on a point of order.

I am glad the Minister made that point because he does not appreciate what I am saying. Section 2 (1) incorporates the principle of extra-territoriality. The whole purpose of this section is to do precisely what I am saying, to ensure that an offender down here who has committed an offence in the North of Ireland which corresponds to an offence in the Schedule of this Bill, can be transferred to the North of Ireland in the custody of the police and security forces of the North of Ireland to stand before a judicial commission in the North who will hear evidence with regard to the offence purported to have been committed by the offender in the North of Ireland. This may happen even if the man is on bail and free to move as he likes in this part of Ireland. He can be so brought and put into the custody of the security forces in the North. That is what flows from this Bill and the Minister is well aware of that. There is no point in running away from it because this is one of the practical aspects of this Bill that renders it entirely ineffective. No man will put himself into the jeopardy I have just described. This Bill says this can happen. In particular, subsection (1) of section 2 which introduces this principle of extra-territoriality states:

Where a person does in Northern Ireland an act that, if done in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence and he shall be liable on conviction on indictment to the penalty to which he would have been liable if he had done the act in the State.

He can only be convicted on indictment after due proof is given before the Special Criminal Court. I want to emphasise this point again that section 2 is directly tied in with section 11.

Senator Yeats is perfectly right because section 11, which makes section 2 effective and operable, in fact specifies that the court referred to is the Special Criminal Court for the purpose of the trial in accordance with Article 38 and so on of the Constitution. That is the start of section 11 (1). So in order to make subsection (1) of section 2 work, (a) the Special Criminal Court must be the relevant court, and (b) in order to make it work that court in effect must request the courts in the North of Ireland, as set out in section 11, and must request the Lord Chief Justice in Northern Ireland to establish a commission composed of a judge of the High Court in Northern Ireland who will sit and hear the evidence on which the conviction can take place under section 2 subsection (1). The evidence must be heard by a High Court judge in the North of Ireland with the judges of the Special Criminal Court from this part of Ireland sitting beside him and listening but not in any way hearing evidence, or not in any way being able to question the witnesses directly so as to test the credibility of the evidence.

That may happen in any one of several ways. It may happen under what flows from section 2. In order to procure conviction on indictment under subsection (1) of section 2, there are various ways in which that can be done. The accused man may volunteer to go to the North. If he does that he has to go into custody in the North of Ireland. He will not do that, therefore he will not be there to participate in the hearing of vital evidence, to recognise witnesses, to cross-examine them directly himself. So straight away you have a situation where the person charged is put into a situation which he would not go into, and therefore the whole combination of section 2 and section 11 becomes a complete charade. The accused, in the interest of his own protection from the security forces in the North, rightly refuses to go North to give evidence or to question witnesses, or to give evidence before such a tribunal, and stays down here. The evidence then will be heard in the North of Ireland in his absence without any means of testing such evidence.

I am back basically to subsection (1) of section 2, which is the nub of the whole Bill. The Bill must be tested on one basis, and that is the effectiveness, the workability, the enforceability of the subsequent measures that flow from section 2 and are designed to give effect to the principle enshrined in section 2 (1). Of course, it goes without saying that you have had limited application of the principle of extra-territoriality. The Minister is welcome to the point that you have such a principle enshrined with regard to the poaching of salmon under the Foyle Fisheries Act, in a very limited way, where there is a common and mutual interest to catch salmon poachers.

We are not talking about salmon poachers in this. We are talking about a far more fundamental breach of the criminal law where, as I said earlier, you are providing the Minister with legislation although it will never be effective. We are providing the legislation for the handing over of offenders to the security and police forces in the North of Ireland, the handing over by this State of offenders who may be out on bail and free men within this jurisdiction.

This Bill will not work. The cat will not jump. The offenders will not budge from here. There is very little that can be done. A phoney court or commission hearing will be held in the North of Ireland with nobody present on behalf of the accused. This evidence will be brought down to a court in the South of Ireland, brought down on a commission introduced for the first time into criminal law, brought down in written form. The accused will appear before the Special Criminal Court. The burden of the evidence against him will be untested evidence in writing from the commission hearing in the North of Ireland, in Belfast.

That sort of hearing will not stand the light of day. As a criminal hearing that could deprive a man of his life or his liberty, it will be torpedoed under Articles 5 and 6 of the Convention on Human Rights, torpedoed under the basic criminal law provisions that are written into our Constitution. All of this in the interest of what? It will be totally ineffective. The fact of the matter is that we have under the existing Offences Against the State legislation strong enough legislation to handle this problem as far as the Twenty-six Countries are concerned. That is functioning at this time.

Our function at this time is to ensure that law and order is maintained where our forces have their jurisdiction. We have the police and Army of this country to look after what has to be looked after within this area. The way events have accelerated since the Minister introduced this Bill fully justifies what I am saying that whatever scintilla of misguided confidence was placed by our misguided Government in the good faith of the Northern Ireland administration at the time of the Sunningdale Agreement, it may have been justified in the interests of getting a good deal in December, 1973——

The Senator is proposing to thwart——

It certainly had vanished by the time the Minister introduced this Bill. The Convention elections have finally hammered the nail into that particular endeavour. I am not saying this in any spirit of triumphalism vis-à-vis the Minister. I am only talking here in terms of ordinary plain common sense. This bird will not fly. The Minister is well aware of it. The situation has now rapidly changed, unfortunately for the worse. We will not under this legislation start handing over offenders to the sort of people who now appear to be emerging in power in the Northern Ireland jurisdictional area. I should hope not. I should hope that until we have total community interest and trust, North and South, in the police and security forces, North and South, unless that is enshrined into some form of police authority in the North and police authority here, individually acceptable each way, this Bill is not on.

Fundamentally the problem in regard to the whole area of law administration and enforcement in any country depends on the regard and the bona fides and the value placed by the ordinary citizen in the respective police force and security force related to each area. This is what it is about. While the present and continuing situation exists in regard to the police and security forces in the North of Ireland, the coping stone here in this Bill is just hanging in mid air without a foundation. Because the only foundation for an irradical Bill that breaches the extra-territorial principle I have mentioned, the only basis for an extension of it into an all-Ireland court would be a situation where there was mutual regard for the police and security forces in each part of the island and where stone by stone we could build an edifice of mutually acceptable police and security forces. That is the basis for all extra-territorial and extradition arrangements. They are arrangements between civilised states in regard to particular matters in which there is mutual trust.

Obviously, there is mutual trust within the Foyle Fisheries administration. They have mutual interest in protecting the salmon interests of the Foyle Fisheries from the salmon poachers who exist in Counties Derry, Tyrone and Donegal. Is there the same mutuality of interest in regard to the serious crimes which I mentioned between the security and police forces in the Republic and the security and police forces in the Six County area? That is the question which should be asked. It is only when that trust has been achieved that we will have the foundation, the cornerstone of the edifice on which we can build a civilised community.

The last step should be the coping stone at the top: the last step should be a measure of this kind in the form of exchanging offenders or in the form of a court, hopefully, such as was mentioned in the Sunningdale discussion, an all-Ireland court. Matters of this kind should be the end product of a lot of hard work over a difficult period where gradually the trust of police and security forces would be built up. It is only then, in that situation, that a Bill of this kind could be introduced.

Bringing in this Bill in an atmosphere of suspicion and distrust is totally futile and a hopeless endeavour. I cannot understand why the Minister, who is a reasonably good politician—I grant that there are reasonably good politicians in the present Government——

Hear, hear.

Why this Bill is not quietly put on ice——

For the same reasons that the Deputy proposed in 1965.

If the Minister is talking about timing and managing affairs, he should take a long, hard look at how we did it when we were in Government. I always regarded a sense of judgment and a sense of timing as the most important political attributes.

Jack Lynch made one fatal mistake in timing.

That is what politics is all about. That particular action was probably the most brilliant bit of timing of all times, if one looks at it in retrospect. Anyway, on subsection (1) of section 2, this is the difficulty that we are bringing in a Bill which is not operable. Senator Alexis FitzGerald became emotionally involved in this matter. Everybody feels for the terrible situation which exists in the North of Ireland. I do not think it is helping that situation to bring in a measure of this kind. We only stir up unnecessary debate and division of opinion on a very vital matter on which people feel deeply. I have got letters on the matter from people who believe the Bill would work. I tried to tell them not to get too excited; that this Bill would not be operable. Then they usually say: "It is a terrible waste of time, what is all the blather about?" I agree with them. My attitude to this Bill is that it is much ado about nothing, but unfortunately it concerns a very serious matter. It is concerned with a fundamental matter.

I would suggest to the Minister that the matter of extra-territoriality, the nice legal principle which is adopted in certain areas where there is mutual bona fides operating, is totally inappropriate in a measure of this kind which deals with a most serious crime; in a situation which has worsened for the people who have a degree of power at the present time in Northern Ireland; there is no evidence of mutual trust between the police and security forces in the North and here. The whole record of the past few years has been very poor. We are going to throw this Bill into the middle of that climate and hope it will deal with the serious problems mentioned.

After Sunningdale, amid a great noise, an order was made under the 1861 Offences Against the Person Act in this House making murder extra-territorial and enforceable in both parts of the island. Senators will remember that this was one of the least brilliant results of all the Sunningdale brains. That order has been law for the past 14 months and there has not been a single attempt to prosecute anybody for murder under it.

There have not been any fugitives.

There was no prosecution. The very same thing will arise in relation to this Bill.

Does the Senator say there should have been prosecutions.

It cannot be made effective, anymore than it can be done under this Bill. If an offender decides not to go to the North to hear the evidence being laid before the commission about him, before the Judge of the High Court with the Special Criminal Court judge, I feel he would be defended in doing so in order to avoid complying with the terms of the Bill which would force him into custody. My opposition to section 2 (1) is that the principle of extra-territoriality embodied in that subsection is simply not enforceable under the subsequent sections that flow from it. This Bill brings nothing but disrepute on the law, to have legislation of this kind introduced and then have it rendered inoperable. It would be far better if the Minister put the Bill on ice. Often in politics it is more important what is not done than what is.

We are now getting a lecture.

This relates to timing, to when a Bill should be introduced and when it can be effective. The Government would earn enormous kudos if they recognised the total ill-timing of this measure; the fact that extra-territoriality as embodied in section 2 (1) is an excellent principle in an excellent situation only. Assuming there was a state of complete peace in the Thirty-two Counties and administration was established in regard to security and police acceptable to all as envisaged in Sunningdale; then extra-territoriality could be considered. Everything must be viewed in this context. The Minister should refrain from quoting things out of context ten years later. The context of today is that principle under section 2 is being introduced in a situation that is totally inappropriate in regard to the enforcement of any form of extra-territorial administration related to the offences mentioned in the Bill.

Unfortunately, the Minister and the Government did not have the memorandum in the Minister's office when they discussed it at Government level. They apparently decided that this thing should see the light of day. Having discussed it they decided to adopt the memorandum that was submitted to them. The Government made a decision to go ahead with this extra-territorial principle although the walls were falling around them and although Sunningdale was in shambles. They decided to go ahead with this little end of it that was only the end product of the whole Sunningdale arrangement.

Having decided then that it should see the light of day, the Minister now apparently, mistakenly, in my view, believes that he must proceed. That is a bovine attitude for any person in a politically sensitive job to adopt. The sensible attitude to adopt is to say: "Look here, I recognise the facts of life. The facts have changed even more since the Convention election. The facts are that I cannot dream of sticking to enforcing section 2, subsection (1) in the context of the situation that exists in the North, and which is likely to exist for the foreseeable future."

In that context the Government, recognising the seriousness of the situation and recognising the large economic and social issues that have to be faced up to, should tell the Irish people: "This Bill is being withdrawn until a more propitious and appropriate time arrives, and then when we have a settled situation in the North we can have this matter for discussion again. At this time let us drop it and forget about it." The Minister can earn himself enormous kudos for showing himself to be a Minister possessed of a very real degree, not alone of moral courage, which I admire, but of ordinary common sense, if he adopts this attitude.

I find it very difficult to understand Senator Lenihan's attitude and the attitude of the Fianna Fáil Party. It may be that the blind spot is mine rather than theirs. The Leader of the Fianna Fáil Party solemnly advises the Minister to withdraw this Bill until times are settled in the North and then introduce it. Section 2 is bringing into operation a procedure specifically for the purpose of dealing with the scheduled offences. What are the scheduled offences? They are murder, manslaughter, arson, kidnapping, false imprisonment, burning churches, burning buildings with people inside them. Are these activities that are normally associated with settled and peaceful times? When times are settled and peaceful, is that the time when it is likely there will be need for a Bill dealing with murder, manslaughter, knee-capping, kidnapping and so on?

These things are taking place now, but we are being advised by Fianna Fáil that now is not the time to introduce this Bill. Their advice is: "Wait until all these things have passed and then introduce the Bill." Is not that the kind of advice being given to us by Fianna Fáil. In the same breath, Senator Lenihan tells us to recognise the facts of life. What are the facts of life in relation to this matter? Are not the facts of life in relation to this matter that for too long we have stood idly by and been content to let people with blood on their hands seek shelter south of the Border, having committed what, for brevity sake, I call the scheduled offences in the Bill? Is not that one of the facts of life?

Is there anyone going to deny that from Senator Lenihan's side of the House? Is that not a fact of life which the present Minister and the present Government are facing up to in the Bill? Is that not a fact of life which according to the advice being tendered to the Minister from the Opposition benches we are asked to forget about rather than to remember? We are asked to withdraw this Bill and put it in cold storage by a former Minister for Justice, in relation to these heinous offences scheduled in the Bill. He must have been talking in relation to that when he told us that it is more important what not to do than what to do.

It is, sometimes, if the Senator thinks about it deeply enough.

Brookeborough was a fact of life.

What about the night of the bombs?

I have here a commentary on the——

I hope it is not more poetry.

It may not be poetry to the Senators opposite. It is a commentary on the general attitude of the Government of which Senator Lenihan was a member when the troubles started in the North in 1969 — immediately subsequent to that.

The trouble started a long time before 1969.

I am glad the Senator reminded me of that, because what I want to refer to ties in very well with Senator Dolan's complaint about foreign troops on our soil and trying to get rid of foreigners for 700 years.

What is the Senator about to quote from?

I think the House is entitled to know.

I would not like to see the Senator, also, being involved in a breach of the Official Secrets Act, so perhaps he might tell us before he starts reading.

Let me reassure Senator Yeats that I am quite prepared to put the entire of this document in the Library. It is called We Won't Stand Idly By and it is by one Kevin Boland, a former colleague of Senator Lenihan.

Is it in order to read such commentaries while on section 2 of the Criminal Law Bill?

An Leas-Chathaoirleach

Until I have heard what the commentary is I do not know whether it relates to section 2 or not. I am afraid I cannot help you on that.

What I am talking about is very relevant to the speeches made by Senator Lenihan and Senator Dolan. Senator Dolan's complaint was about the foreign troops on our soil. Senator Lenihan's advice is to put this Bill in cold storage and that it is more important to know what not to do than what to do, to put it on ice. I quote:

We had requested a United Nations force or a joint British and Irish force. —the hope of the Republican Government——

In case Members opposite do not recognise the description, that was a description of the Fianna Fáil Government.

——was that the British would take us out of the hole by sending in their troops before the weather broke and the holidays were ruined. The British battalions duly arrived in their peacekeeping role and the majority of the members of the Republican Government began to breathe freely again. Britain was exercising her ultimate responsibility and we could get on with our Twenty-six County chores, after the holidays of course. In so far as the majority were concerned, the massive build up of a British armed presence on Irish soil aroused no atavistic feelings of resentment. The general feeling of relief was not disturbed by the reiteration by Messrs. Wilson and Callaghan of the imperialistic British claim that what happened in the Six Counties was an internal British matter and that partition was not and would not be an issue.

An Leas-Chathaoirleach

I think Senator O'Higgins may have answered the point in the first part of the quotation, but extending the quotation is not relevant to section 2.


That is the end of that quotation, which was directed in particular to Senator Dolan.

With regard to Senator Lenihan's point, that it is more important to know what not to do than what to do, to put the whole thing on ice, apparently there is a certain consistency in Senator Lenihan's thinking, assuming he went along with the views of his colleagues, because his colleague at that time commented in this little booklet that the reaction to every suggestion was the same: "We must be careful, above everything else, not to jeopardise what we have gained down here. In other words, the same thing: more important to know what not to do than to know what to do, to be careful we do not jeopardise things".

We were also very careful always not to bankrupt the country.

Kevin Boland will sleep tight tonight knowing Senator O'Higgins has quoted him.

We might come back to this. There are some very——

He would be even more delighted.

I would advise Senator O'Higgins to go back to it while the Leas-Chathaoirleach is in the Chair.

An Leas-Chathaoirleach

I would ask Senator McGlinchey to restrain his remarks and reference to the Chair.

I said I would advise him to go back to it while the Leas-Chathaoirleach is in the Chair. I do not think the Leas-Chathaoirleach—

An Leas-Chathaoirleach

The Chair resents that remark and would ask the Senator to withdraw it. The Chair takes that remark as a very severe criticism of the Chair.

I want to know what is the reflection? I advised Senator O'Higgins——

An Leas-Chathaoirleach

The Senator is insinuating that the occupant of the Chair is not giving the same treatment to certain Members of the House as to others. That is the inference I take from the Senator's remarks. If the Senator tells me that is not correct——

I said I would advise Senator O'Higgins to quote from that book while the Leas-Chathaoirleach is in the Chair.

An Leas-Chathaoirleach

And I have told the Senator what I thought was inferred by that.

I am sorry if the Chair takes umbrage at that, if the Chair thinks she gives Senator O'Higgins a better crack of the whip than the Cathaoirleach.

An Leas-Chathaoirleach

I accept Senator McGlinchey's apology.

I was not apologising.

An Leas-Chathaoirleach

If the Senator is not apologising, I have asked for an apology or a withdrawal of the Senator's remarks.

I am sorry if the Chair takes umbrage at the remark and feels that the Cathaoirleach would not allow Senator O'Higgins to read this.

An Leas-Chathaoirleach

Senator McGlinchey is well aware of what the Chair said. The Chair is asking for an unqualified withdrawal of the Senator's remarks.

I said I advised Senator O'Higgins to read from this booklet while the Leas-Chathaoirleach is in the Chair. What reflection——

An Leas-Chathaoirleach

Is the Senator prepared to withdraw his remarks?

I want to know what reflection have I cast on the Leas-Chathaoirleach?

An Leas-Chathaoirleach

I have made my statement and do not intend to repeat it. I have asked the Senator if he is prepared to withdraw his remarks which I considered were very offensive to the Chair.

I think Members generally, and I hope Members on Senator McGlinchey's side of the House would share your feelings. I do not think there was the slightest doubt that the implication in Senator McGlinchey's remark was that the Leas-Chathaoirleach if in the Chair would allow disorderly quotations notwithstanding the fact that the Chair had already curtailed me in my quotations. In view of the fact that Senator McGlinchey has steadfastly refused to withdraw the remark which I would regard as an aspersion on the Chair——


——I would have no hesitation in proposing that the House must uphold the authority of the Chair and propose that Senator McGlinchey be suspended.

An Leas-Chathaoirleach

I have asked Senator McGlinchey to withdraw his remarks. I would ask him once again.

Because I intend speaking tonight, I will withdraw the remark.

An Leas-Chathaoirleach

Senator O'Higgins on section 2.

Let us get back to the fact of life which Senator Lenihan asked us to consider. I started by saying that I genuinely am puzzled by the Fianna Fáil attitude to this Bill. One would have thought there would be a certain amount of enthusiasm from any national party in this country at the fact that we in this Parliament were by our legislation extending our jurisdiction so as to enable us to control, and I believe effectively control, notwithstanding Senator Lenihan's view, the activities of those who would commit heinous crimes in the separated part of our country. That, in essence, is what the Bill is doing. It should be a matter of pride rather than a matter for jibing and taunts of collaboration. It should be a matter of pride that we, as a sovereign Parliament, are able to do that on a reciprocal basis with the British Government, the Government of the country that Senator Dolan was referring to as the foreigners occupying this country for several hundred years.

Of course they are.

At least we have reached the measure of independence that we are able to negotiate and legislate on a reciprocal basis.

With the Yorkshire Regiment.

You negotiated with them before and sold us down the river.

With those who formerly were able to keep us in subjection. They are not doing it now.

We are exercising our own rights, as free men, as people who are wearing the badge of freedom in this country. We are able to legislate and about what are we legislating? We are legislating to say that, so far as we in this Parliament are concerned, people are not going to be allowed to bomb, kill, maim, burn churches and incinerate people in buildings across the Border and then seek and get sanctuary here. That is all that is involved in this Bill.

Let us not burke the issue. Let us not be shy of facing that fact, put whatever gloss you like on it, that is the kernel of this Bill. There is no one will deny it, who is prepared to read this Bill with an open mind.

That is a highly simplistic approach.

Is there any harm about approaching this in a simple, direct, straightforward way? There is nothing tortuous about it.

I said "simplistic". The Senator is being childish.

Is that not what is involved in this Bill?

If it is a bad Bill we are supposed to support it just because——


An Leas-Chathaoirleach

Senators must allow Senator O'Higgins to make his contribution without incessant interruptions.

The Senator is finding inspiration from the pamphlet.


An Leas-Chathaoirleach

Could we have a more orderly debate and a contribution from Senator O'Higgins?

I am just wondering if anyone else wants to make my speech. I am not at all surprised that the Senators opposite do not want to hear what I am saying.

The Bill is going to melt away; it is not going to be put on ice.

An Leas-Chathaoirleach

It is quite impossible for the Senator to make his contribution. I ask the Members of the House to please be orderly.

If anyone asks me about the 100,000 unemployed I would remind them of another figure of 100,000. Let us be serious about this. It is a serious Bill. Senator Lenihan made another point in his speech on this section. If he considers it, he should feel logically that all this type of nonsense going on here this evening is quite unnecessary. Either the Bill means something or it does not. Senator Lenihan takes the view that it does not. If it does not mean anything why is he worried about it?

We want to show the Government up for bringing in unnecessary legislation.

We do not like to see bad legislation.

I take the view that the Bill means something. I suspect that most of Senator Lenihan's colleagues, when briefed to deal with this Bill, were briefed to deal with it on the basis that the Bill meant something that was objectionable and offensive to the traditions and principles of the Fianna Fáil Party. Is that correct or not? If it is correct, I should like to know which traditions and principles of the Fianna Fáil Party are offended in any way by a Bill which seeks that we in this Parliament should try to play our part in stamping out heinous crimes committed across the Border by people who seek sanctuary in this part of the country.

British soldiers, for instance.

Is there anyone in the Fianna Fáil Seanad group listening to me who would claim that that is in any way offensive to any principle or any tradition of the Fianna Fáil Party? I am sure there is not.

I said quite clearly it is unworkable.

That may be what Senator Lenihan said. Perhaps the Senator would listen now to what I am saying.

But the Senator is asking questions.

I do not think there is anyone in the Fianna Fáil Party who will be prepared to adopt that attitude, because it would be entirely false and entirely erroneous for any member of the Fianna Fáil party so to do.

When it is one-sided.

I do not think we should have Question Time here.

No, let us have a little bit of listening. I do not believe any Member of the Fianna Fáil Party would feel it is contrary to the traditions or to any principle of the party that a sovereign, independent Irish Parliament should endeavour to legislate so as to prevent the territory South of the Border being used as a sanctuary for those who may commit these scheduled offences North of the Border.

On a point of order; I share the Leader of the House's sincerity. Perhaps he would answer just one question and perhaps he would reply to the House.

An Leas-Chathaoirleach

Senator Brennan, that is not a point of order.

How does he reconcile his attitude now when we recall his party's attitude to the Offences Against the State Act and the Forcible Entry Act? What changed the Senator's mind so much?

An Leas-Chathaoirleach

I have already ruled that is not a point of order. The Senator may make his contribution later in the debate. Senator O'Higgins to continue.

I am sorry. I did not get the question. I am beginning to lose my trend with these interruptions.


Tell us what you think and do not ask us what we think.

Before Senator Ryan returned to the House I had been saying what I thought.

The Senator should tell us why he thinks it is workable.

In the face of the effort being made by this Bill to legislate——

On a point of order, a Leas-Chathaoirleach, in view of the fact that, earlier, the Cathaoirleach ruled that Senator Lenihan could not speak on the Bill but had to confine himself to the section, is it in order for Senator O'Higgins to do it?

An Leas-Chathaoirleach

Senator O'Higgins is speaking on the section as far as the Chair is aware.

In view of the effort being made by the Minister and the Government by means of this Bill — and Senator Lenihan has referred to this as the key section of the Bill — to ensure that our territory will not be used like that, to ensure as far as we can that these practices will be stamped out, I do not appreciate the argument put forward on the section by Senator Dolan that what we are trying to do here is to take from our sovereignty. I understood that to be put forward as a serious argument. Not alone is there no question of any diminution whatever of Irish sovereignty so far as this Bill is concerned but what we are concerned with here is an extention of the jurisdiction of the Irish criminal law.

Can the Senator not tell the people straight that the Government were invited by England to do this and that the Government knew already?

Is Senator Dolan tempting me again?

The Senator might give us another phrase out of the booklet now.

The Senator should go back to Kevin Boland's booklet.

I know the attitude of Fianna Fáil Senators in this House. I have never had the privilege of attending a Fianna Fáil party meeting.

And the Senator never will.

An Leas-Chathaoirleach

Senator O'Higgins to continue on section 2 please. It would be of assistance if some of the Senators on the other side managed to control themselves.

I can well imagine what it must be like at times. In fact I do not even need to imagine it.

We read what is happening at Fine Gael meetings in the Sunday Independent.

We have the testimony of one who attended more than one such meeting and who went on record as saying that it was in the parliamentary party that the real sordidness and cynicism exist.

An Leas-Chathaoirleach

That is not relevant to section 2.

What about the night of the long knives?

This is the first time I ever heard a Government filibuster.

I am surprised the Senator should encourage these interruptions. I am even more surprised that a former Cathaoirleach should do it. Let us be patient for a moment and listen to what is being said. I am trying to pay Senator Dolan the courtesy of treating his contribution seriously, why I do not know.

On a point of information, that is not what the Leader of the House said; he was talking about a Fianna Fáil party meeting.

An Leas-Chathaoirleach

The debate at present is on section 2 of the Bill.

Had the Senator finished the quotation from the little booklet?

An Leas-Chathaoirleach

The Chair ruled that quotation out of order.

The Chair quite properly ruled the quotation out of order.

An Leas-Chathaoirleach

It might be helpful if the Senator Killilea paid some attention to the Chair. Senator O'Higgins to continue.

I could not pay attention to the Chair because I was paying so much attention to Senator O'Higgins.

I am trying to treat Senator Dolan's contribution seriously. I am sure he intended it seriously.

I thank the Senator for his courtesy.

He spoke of this as trying to take from our sovereignty; that we were being asked to act in collusion. Then he went on to refer to British justice. This is where Fianna Fáil are misleading themselves seriously in connection with this Bill. Every Fianna Fáil speaker speaks about British justice, about the faults, weaknesses and so on they see in the administration of justice in the North. One thing we should keep clear in our minds is that this Bill is not concerned with British justice. This Bill is concerned with Irish justice.


An Leas-Chathaoirleach

This debate on section 2 is concerned with extra-territorial justice.

What we are concerned with here is the question of Irish justice and its administration. We are concerned with the administration of Irish justice, in Irish courts before Irish judges.

If a man commits a crime in the North and comes down here, is he allowed to walk around the streets freely?

I would much prefer that Senators opposite would read the Bill rather than depend on me to tell them what is in it.


An Leas-Chathaoirleach

Those remarks are not very relevant to section 2.

What is proposed here, in relation to the matter that Senator Garrett raised, is that a person need not go North if he does not want to, even to a commission to take evidence.

I am not talking about that. I am talking about a man who confesses——

An Leas-Chathaoirleach

Senator Garrett is not in order at present; Senator O'Higgins is in possession.

We are concerned with Irish justice administered by Irish judges in Irish courts. In what cases does this question of justice arise? Who should fear this Bill? Surely this a matter of considerable importance. Who are we concerned with in this Bill? We are concerned with people who are charged with particular offences. The various offences which are scheduled in the Bill are offences which no Member of this Parliament would stand over. I am quite satisfied on that. Consequently, the only people who have anything to fear from this Bill are people who are guilty of committing those offences, or people who are going to be convicted, not in British courts, not in Northern Ireland courts but before our own courts by our own judges. Those are the only people who have anything to fear from this Bill. That is what we are concerned with.

On British testimony.

I cannot understand that attitude; it seems to be so childish. Could Senator Dolan try to understand this? There may not be any British testimony at all. There may not be any testimony from anybody even in the North.

But there may be. Therefore, it could be decided on British testimony.

If Senator Dolan was driving through the North and——

I came through today.

——had a car accident, in which he was in the right, he would be very glad to get testimony to support his case if he had to go to court.

For the Senator's information I am living in the North.

Let us not be completely childish about this. There may or may not be testimony from the North. If there is, who is going to assess it? Who is going to decide whether it should be accepted? Who is going to adjudicate as to the value of that testimony? Irish judges in Irish courts.

They cannot test the evidence. They cannot ask questions directly.

Of course they can.

Will they have the hoods on when they come down?

If that is the extent of Senator Lenihan's criticism of this Bill, why all this——

The accused will not be present to test the credibility.

An Leas-Chathaoirleach

Senator Lenihan made his contribution. Could Senator O'Higgins be allowed to make his contribution?

That will be entirely optional to the accused.

I think Senator O'Higgins is trying to filibuster this Bill.

Will they have the bags over their heads?

I know Senators opposite, having taken a party line, do not like me saying these things because it shows how easily puncturep is the party line.

The Senator spent most of his life trying to put a puncture in it but it did not work.


We have arrived at the situation where I hope it is now understood by Senators that what we are concerned with is Irish justice in Irish courts. There may or there may not be any question of British or Northern Ireland evidence. But, even if there is, it will be a question for Irish judges to assess the value and worth of that evidence and decide whether it should be taken.

I take it that all of us recognise that a problem exists which has to be dealt with. It is recognised that it was not possible to deal with that problem to the extent desired in 1965 under the Extradition Act. Because it was not possible to deal fully with it under the extradition legislation it is at least desirable now, as it was desirable in 1965, that some other system should be found. What is suggested in this Bill is at least a viable proposition for dealing with the existent problem.

Is it in order for Senator O'Higgins to discuss the Bill at this stage?

The Chair has heard nothing so far to indicate that Senator O'Higgins is out of order.

I am quite prepared to go on until we finish this section if that is what is worrying the Senators opposite.

The Senator is doing a fine job today.

They do not want it until Christmas.

The machinery established in this Bill and, in particular in this section, is at least a viable method of dealing with that problem. Obviously, and I think this was pointed out earlier by the Chair, it is not possible at this stage to discuss alternatives, but alternatives were proposed. Therefore the only deduction that can reasonably be taken from that is that there is common case on both sides of the House that there is a problem which requires to be solved.

It is now the normal time for adjournment. What does the House wish?

Progress reported; Committee to sit again.